Gavin Lee Buck v. Jesus Barragan, a/k/a Chito, et al.

Winter recreation has become increasingly popular in the

Deschutes National Forest in Central Oregon, exacerbating

parking shortages and on-snow user conflicts between

motorized and non-motorized recreationalists. In 2012, the

National Forest Service approved the building of Kapka

Sno-Park, a parking lot primarily designed for motorized

recreationalists, and issued an Environmental Assessment

(EA) for the project. Wild Wilderness, a group representing

non-motorized users, challenged approval of the project on

the grounds that the Forest Service had violated both the

National Forest Management Act (NFMA) and the National

Environmental Policy Act (NEPA). The district court

granted summary judgment in favor of the Forest Service.

Reviewing de novo, Alliance for the Wild Rockies v.

Bradford, 856 F.3d 1238, 1242 (9th Cir. 2017), we affirm.

I.

FACTUAL BACKGROUND

The two most popular winter activities in Deschutes

National Forest are snowmobiling and cross-country skiing.

Cross-country skiers and other recreationalists who prefer

non-motorized activities often dislike the noise and tracks

left by snowmobilers, and the Forest Service has recognized

the potential for conflicts between the two groups for many

years. These on-snow conflicts are concentrated in the area

surrounding Dutchman Flat and Tumalo Mountain, which

due to its high terrain and easy accessibility is ideal territory

WILD WILDERNESS V. ALLEN 5

for both snowmobilers and cross-country skiers.1 A lack of

parking has further fueled conflict between these groups of

users. Excluding Kapka, there are seven “sno-parks” within

the Cascade Lakes Highway area of Deschutes. Three are

for non-motorized use only, three are for both non-motorized

and motorized use, and one is for motorized use only.

The Forest Service has long considered building

additional parking for winter recreationalists in this area. In

1996, it considered expanding existing sno-parks but

ultimately decided not to, in part because of a desire to focus

on alleviating on-snow user conflicts. While expanding the

sno-parks could have alleviated conflicts over parking, more

parking would have meant more users, potentially resulting

in more on-snow conflicts. In 2004, the Forest Service

banned snowmobiles from approximately 1,375 acres in the

Dutchman Flat and Tumalo Mountain area that were

particularly popular with skiers to reduce on-snow user

conflicts. It also began analyzing the possibility of building

a new sno-park in the area, near Kapka Butte.

In 2006, the Forest Service issued a scoping notice,

which proposed building Kapka Sno-Park primarily for

motorized users while closing the neighboring Dutchman

Sno-Park and its immediate surroundings to motorized use.

The purpose and need of the action, according to the notice,

were to reduce parking congestion and reduce user conflicts

between the different user groups by separating them. The

notice also stated that recent regulatory changes had gone

into effect to separate uses and were succeeding in reducing

conflicts in the Dutchman Flat and Tumalo Mountain areas.

1 A map of the area is attached as Appendix 1.

6 WILD WILDERNESS V. ALLEN

Internal emails in 2008, however, show that the Forest

Service at some point had decided to focus only on parking

congestion near Dutchman Flat in a smaller project instead

of simultaneously tackling the parking shortage and further

attempting to separate uses and thereby reduce user

conflicts. The Forest Service issued a new scoping notice in

2009 focused only on the parking issue and a notice of intent

to issue an Environmental Impact Statement (EIS). The

scoping notice stated that the Forest Service “expect[ed] the

analysis to be documented in an environmental impact

statement” and that a draft would be available soon.

Eight months after issuing the 2009 scoping notice, the

Forest Service released a Winter Recreation Sustainability

Analysis. The analysis discussed the increasing use of

certain areas of the forest for winter recreational activities,

particularly along the Cascade Lakes corridor. The higher

demand led to parking “bottlenecks” at some sno-parks due

to limited parking capacity. The analysis also noted that the

vast majority of the forest had little or no conflict issues, but

that the area around Kapka Butte had experienced some onsnow

conflicts, which could possibly be exacerbated if

additional parking capacity were added because it would

likely increase the number of motorized users in the area.

The Forest Service issued a Draft EIS in April 2011. The

Draft EIS’s “Purpose and Need” was twofold—to provide

additional parking capacity and to create trails for Nordic

skiers with dogs. Due to the narrow purpose and need, no

alternatives that would have limited motorized use in the

area were considered as they were outside the Statement’s

scope.

After the comment period ended, the Forest Service

planned internally to issue a supplemental Draft EIS in

response to public comments regarding skiers with dogs and

WILD WILDERNESS V. ALLEN 7

public safety. The agency continued to work on the Draft

EIS through June 2012.

While working on the supplemental draft, the Forest

Service began discussions with the Federal Highway

Administration (FHWA) about it becoming a joint-lead

agency on the EIS. The agencies decided to become co-lead

agencies and met on June 28, 2012 to discuss FHWA’s

comments on the Draft EIS. By becoming a joint-lead

agency, FHWA was also required to sign a Record of

Decision, either separately or jointly with the Forest Service.

A staffer at FHWA told the Forest Service that FHWA

would be willing to sign a separate Record of Decision, but

“it would be great to jointly sign.”

By July 2, four days after the meeting with the FHWA,

the Forest Service had decided to withdraw the Draft EIS and

issue instead a Finding of No Significant Impact and an EA

instead of an EIS. A Finding of No Significant Impact is

mandatory for an agency to issue an EA in place of an EIS.

40 C.F.R. § 1501.4(e).

Two months later, on September 14, 2012, the Forest

Service issued the final EA along with its Decision Notice

and Finding of No Significant Impact. The EA contained the

same statement of purpose and need and the same four

alternatives as the Draft EIS.

The final project at Kapka consisted of a parking lot that

could hold 70 vehicles with trailers and two short trails

connecting the lot to existing trail systems. The option of

opening the trail system to dogs was removed.

In the following days, the Forest Service published

notices withdrawing its “Notice for Preparation of an

Environmental Impact Statement” as well as its Draft EIS.

8 WILD WILDERNESS V. ALLEN

Wild Wilderness and other opponents to the project filed

administrative appeals to the Decision Notice and Finding of

No Significant Impact, which were denied, and then this

lawsuit. The Oregon State Snowmobile Association

alongside other pro-snowmobile groups successfully joined

the case as defendant-intervenors. The Forest Service

completed construction of Kapka Sno-Park in November

2014, and it was open to winter recreation use for the 2014–

15 season.

II.

THE CASE IS NOT MOOT

As a preliminary matter, the Oregon State Snowmobile

Association argues that Kapka Sno-Park is built and

therefore this case is now moot. They also make the related

argument that Wild Wilderness’s claims lack redressability.

This is because, the Association argues, Wild Wilderness’s

true goal is to reduce areas open to snowmobilers and the

contested action did not result in more areas being open to

snowmobile use.

In deciding whether a case is moot in this context, “the

question is not whether the precise relief sought at the time

the application for an injunction was filed is still available.

The question is whether there can be any effective relief.”

Or. Natural Res. Council v. U.S. Bureau of Land Mgmt.,

470 F.3d 818, 820 (9th Cir. 2006) (quoting Nw. Envtl. Def.

Ctr. v. Gordon, 849 F.2d 1241, 1244–45 (9th Cir. 1988)).

“The party asserting mootness bears the burden of

establishing that there is no effective relief remaining that

the court could provide.” S. Or. Barter Fair v. Jackson

Cnty., 372 F.3d 1128, 1134 (9th Cir. 2004). That burden is

always “heavy,” as a case is not moot where any effective

relief may be granted, Forest Guardians v. Johanns,

WILD WILDERNESS V. ALLEN 9

450 F.3d 455, 461 (9th Cir. 2006), but “defendants in NEPA

cases face a particularly heavy burden in establishing

mootness.” Cantrell v. City of Long Beach, 241 F.3d 674,

678 (9th Cir. 2001). As we have explained:

When evaluating the issue of mootness in

NEPA cases, we have repeatedly emphasized

that if the completion of the action challenged

under NEPA is sufficient to render the case

nonjusticiable, entities could merely ignore

the requirements of NEPA, build its

structures before a case gets to court, and then

hide behind the mootness doctrine. Such a

result is not acceptable.

Or. Natural Res. Council, 470 F.3d at 821 (quoting Cantrell,

241 F.3d at 678) (internal quotation marks omitted).

This case is not moot. Wild Wilderness’s complaint

identified several remedies that remain available despite

Kapka Sno-Park’s completion. A court could order a new

NEPA analysis with a broader purpose and need or with

additional alternatives; issue injunctive relief requiring the

Forest Service to close Kapka Sno-Park or use it only in the

summer; or simply order the Forest Service to issue a full

EIS. See, e.g., West v. Sec’y of Dep’t of Transp., 206 F.3d

920, 925 (9th Cir. 2000) (rejecting a mootness challenge

because the court’s remaining remedial powers included

remanding for additional environmental review or ordering

the project closed or deconstructed).

Relatedly, Wild Wilderness’s claims do not lack

redressability. Although the Snowmobile Association

argues that Wild Wilderness’s claims obscure a true desire

for remedies beyond the scope of the current action, the court

10 WILD WILDERNESS V. ALLEN

may still grant some effective relief for Wild Wilderness’s

claims.

Because the case is neither moot nor lacking

redressability, we proceed to the merits.

III.

THE FOREST SERVICE DID NOT VIOLATE THE

NFMA

We first consider whether the Forest Service violated the

NFMA by approving Kapka Sno-Park. Forest Service

actions must be consistent with the governing Land and

Resource Management Plan, commonly called forest plans.

Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d

953, 961 (9th Cir. 2005); 16 U.S.C. § 1604(i). The

governing plan here is the Deschutes Forest Plan. “We set

aside an agency’s actions ‘only if they are arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.’” In re Big Thorne Project, 857 F.3d

968, 973 (9th Cir. 2017) (quoting Or. Natural Res. Council

Fund v. Goodman, 505 F.3d 884, 889 (9th Cir. 2007)).

Wild Wilderness argues that the Forest Service’s action

failed to comply with two sections of the Deschutes Forest

Plan. We consider each in turn.

The first section of the Forest Plan outlines standards and

guidelines for winter trails and includes the following

provision:

Where conflicts develop between nonmotorized

and motorized winter use the

following sequence of steps will generally be

taken:

WILD WILDERNESS V. ALLEN 11

• Trails will be designed to encourage

the intended user and to discourage

others. An inviting system of trails

will be provided for both nonmotorized

and motorized users.

• Intensify educational and indirect

management efforts to resolve the

conflict.

• Restrict motorized use of [N]ordic

trails.

• Close the area where the conflict is

occurring to motorized use.

The Forest Service has indisputably used all four of these

steps at different times in attempting to resolve conflicts

between motorized and non-motorized users, including

closing areas to motorized use. Wild Wilderness

nonetheless argues that the provision forbade the Forest

Service from building Kapka Sno-Park instead of closing the

area to motorized use because user conflicts persisted. But

nothing in this provision mandates closure of any area to

motorized use. It merely outlines steps that “will generally

be taken” in the event of user conflicts. The Forest Plan

outlines “an aspiration, not an obligation” and therefore

“there is no law for us to apply in second-guessing the

agency.” Big Thorne Project, 857 F.3d at 974. The record

also does not support Wild Wilderness’s claim that the

Forest Service has interpreted the Forest Plan to mandate

closing areas to motorized use when user conflicts persist.

Wild Wilderness argues that Kapka Sno-Park was

inconsistent with the Forest Plan’s “Recreation Opportunity

12 WILD WILDERNESS V. ALLEN

Spectrum,” which labels areas within the forest with the

recreation experiences and activities available there. See

WildEarth Guardians v. Mont. Snowmobile Ass’n, 790 F.3d

920, 928 (9th Cir. 2015). For example, Kapka Sno-Park

itself is located at “Scenic Views (MA 9),” where “Parking

facilities, structures and other recreational facilities will

normally be placed where they are not visible from

significant viewer locations” to maintain the area’s

aesthetics. Again, however, this non-binding guidance for

recreation planning and guidance does not appear to create

any obligation that the Forest Service could have

disregarded. Because Kapka Sno-Park was not inconsistent

with the Forest Plan, the Forest Service did not violate the

NFMA.

IV.

THE FOREST SERVICE DID NOT VIOLATE NEPA

Wild Wilderness claims that the Forest Service violated

NEPA by first issuing the Draft EIS but then reversing

course and issuing a Finding of No Significant Impact and

final EA in its place. If an agency determines that an agency

action does not require a final EIS, it must issue a “finding

of no significant impact.” 40 C.F.R. § 1501.4(e). The

finding must present the reasons why an action “will not

have a significant effect on the human environment and for

which an environmental impact statement therefore will not

be prepared” and include an EA or a summary of it.

40 C.F.R. § 1508.13. The Forest Service complied with

these regulations, completing an EA and issuing a finding of

no significant impact.

The Forest Service had previously intended to issue an

EIS, but regulations govern that situation as well. When the

Forest Service has determined that an EIS “is no longer

WILD WILDERNESS V. ALLEN 13

necessary,” it must publish a withdrawal notice in the

Federal Register with the date and page number of the

previously published notice. 36 C.F.R. § 220.5(c). The

Forest Service published such a withdrawal notice.

Wild Wilderness argues that the Forest Service faced the

additional and implicit requirement that it issue a reasoned

explanation as to why it had decided to issue an EA. Of

course, every finding of no significant impact must by

definition explain why an agency believes that the effect on

the human environment of the agency’s decision is too

insignificant to merit an EIS. See 40 C.F.R. § 1508.13. But

Wild Wilderness demands something slightly different—an

explanation not of why an EIS was unnecessary but instead

of why the Forest Service had changed its mind.

Wild Wilderness offers no support for this novel

procedural requirement. But see Vt. Yankee Nuclear Power

Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 525

(1978) (cautioning courts to not “engraft[] their own notions

of proper procedures upon agencies entrusted with

substantive functions by Congress”). It instead points to

cases in which agencies failed to provide reasoned

explanations for changes in their position on matters of

policy or factual findings. See Humane Soc’y of the U.S. v.

Locke, 626 F.3d 1040, 1049 (9th Cir. 2010); Organized

Village of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 968

(9th Cir. 2015) (en banc). The Forest Service here, however,

never changed its mind on any factual or policy matter but

only on how it planned to comply with its own procedural

requirements. There was no agency decision to reverse, as a

draft EIS is not an agency decision at all. See Bennett Hills

Grazing Ass’n v. United States, 600 F.2d 1308, 1309 (9th

Cir. 1979) (ruling that a draft EIS was not yet subject to

judicial review because it was not yet an agency decision).

14 WILD WILDERNESS V. ALLEN

The Forest Service may have withdrawn the EIS because the

Kapka Sno-Park was significantly scaled down from earlier

plans or because the initial plan to release one was overly

cautious—either way, there was no additional procedural

requirement to explain the basis of its decision.

Wild Wilderness suggests that the true motivation to

withdraw the EIS arose out of the Forest Service’s meeting

with the FHWA. The record does not establish whether this

is true, but more importantly, it is not clear what improper

motive either agency could have had to issue an EA in place

of an EIS following the meeting. Wild Wilderness suggests

that as a result of the switch from the EIS to the EA, the

FHWA would not have had to sign the record of decision,

but in internal emails FHWA staff wrote, “it would be great

to jointly sign” a record of decision.

Underscoring our conclusion is that Wild Wilderness

does not articulate where the Forest Service was obligated to

provide a reasoned explanation for withdrawing the Draft

EIS. It cannot plausibly have been obligated to do so in the

withdrawal notice, as the regulations governing such a notice

clearly contemplate a very brief statement. 36 C.F.R.

§ 220.5(c) (stating the requirements of a withdrawal notice

as “the date and Federal Register page number of the

previously published notice(s)”). The finding of no

significant impact need only “briefly present[] the reasons

why an action, not otherwise excluded (§ 1508.4), will not

have a significant effect on the human environment and for

which an environmental impact statement therefore will not

be prepared.” 40 C.F.R. § 1508.13. While the Forest Service

was obligated to explain why an EIS was not necessary, and

did, there was no additional requirement that the Forest

Service explain why it chose to comply with its own

procedural requirements in a certain way.

WILD WILDERNESS V. ALLEN 15

The Forest Service also did not violate NEPA by failing

to provide a convincing statement of reasons that Kapka

Sno-Park would not significantly affect the environment.

Whether an action “significantly” affects the environment

requires analyzing both “context” and “intensity.” 40 C.F.R.

§ 1508.27. “Context” means that “the significance of an

action must be analyzed in several contexts such as society

as a whole (human, national), the affected region, the

affected interests, and the locality.” Id. § 1508.27(a).

“Intensity” requires consideration of ten factors regarding

the “severity of impact.” Id. § 1508.27(b). One of these

factors may demonstrate intensity sufficiently on its own,

although the presence of one factor does not necessarily do

so. Ocean Advocates v. U.S. Army Corps of Eng’rs,

402 F.3d 846, 865 (9th Cir. 2005).

The district court correctly concluded that the agency’s

action lacked “intensity,” as not one of the intensity factors

suggested that Kapka Sno-Park significantly affected the

environment. First, and contrary to Wild Wilderness’s

arguments, the degree to which the project affected the

environment was not “likely to be highly controversial.”

40 C.F.R. § 1508.27(b)(4). “Controversial” refers to

disputes over the size or effect of the action itself, not

whether or how passionately people oppose it. See Sierra

Club v. U.S. Forest Serv., 843 F.2d 1190, 1193 (9th Cir.

1988). There is no dispute about the size or nature of Kapka

Sno-Park and only small disputes about its effects, such as

where some of the snowmobilers parking at Kapka Sno-Park

will prefer to recreate. The anecdotal evidence about

snowmobiler preferences that Wild Wilderness marshaled

for this factor did not rise to the level of the sorts of scientific

controversies that would substantially undermine the

reasonableness of the Forest Service’s conclusions. See

Humane Soc’y, 626 F.3d at 1057.

16 WILD WILDERNESS V. ALLEN

Wild Wilderness also argues that the action threatened a

violation of federal law, the NFMA, another intensity factor.

40 C.F.R. § 1508.27(b)(10). As discussed above, however,

building Kapka Sno-Park did not violate the NFMA and

therefore did not threaten a violation of federal law.

Wild Wilderness lastly claims that there may be

cumulatively significant effects when the project is

considered with other related actions. 40 C.F.R.

§ 1508.27(b)(7). The EA examined the cumulative effects

with related actions, however, and none of the related

potential actions appeared to compound on-snow user

conflicts between motorized and non-motorized users. None

of the potential actions about which Wild Wilderness was

concerned even involved motorized use.

Wild Wilderness claims that the EA’s Statement of

Purpose and Need and range of alternatives for Kapka Sno-

Park were unreasonably narrow. NEPA requires both that

an EA specify the need for a proposed action, 36 C.F.R.

§ 220.7(b)(1), and that the agency study, develop, and

describe appropriate alternatives. W. Watersheds Project v.

Abbey, 719 F.3d 1035, 1050 (9th Cir. 2013). The latter

obligation is lessened but still extant when preparing an EA

instead of an EIS. Id. Courts afford significant but not

unlimited discretion to agencies to articulate an action’s

statement of purpose and need. Westlands Water Dist. v.

U.S. Dep’t of the Interior, 376 F.3d 853, 866 (9th Cir. 2004).

The scope of the analysis of alternatives depends on the

underlying purpose, so the agency need only evaluate

alternatives that are reasonably related to the purposes of the

action. League of Wilderness Defenders—Blue Mountains

Biodiversity Project v. U.S. Forest Serv., 689 F.3d 1060,

1069 (9th Cir. 2012).

WILD WILDERNESS V. ALLEN 17

The EA here articulated the purpose and need for Kapka

Sno-Park as “provid[ing] safe, high elevation parking that

will enhance a variety of winter recreation opportunities and

provide access to over snow trail systems near the Cascade

Lakes Highway corridor.” There is support in the record for

the need for safe parking. Wild Wilderness attacks the

statement as unreasonably narrow because it ignored the

issue of on-snow user conflicts. The Forest Service was not

obligated, however, to attack every problem in a single

action. Although the Forest Service has in the past

considered tackling both the parking shortage and user

conflicts in a single action, they were not so intertwined that

the Forest Service was unreasonable in aiming to address

one without addressing the other simultaneously. Wild

Wilderness claims that the Forest Service itself has in the

past found that the issues could only be adequately addressed

in a single action, but the record again does not support that

conclusion.

As the Statement of Purpose and Need was not

unreasonably narrow, neither was the range of alternatives.

The scope of the analysis of alternatives depends on the

underlying purpose, so an agency need only evaluate

alternatives that are reasonably related to the purposes of the

action. League of Wilderness Defenders, 689 F.3d at 1069.

The EA examined the proposed action, a no-action

alternative, and two other action alternatives in detail. The

action alternatives were significantly distinct from one

another with regard to their proposals for relocating trails,

varying the size of the parking lot, and changing the size of

non-motorized areas. The EA also briefly considered seven

additional alternatives with explanations of why they were

not considered in detail. The Forest Service was not required

18 WILD WILDERNESS V. ALLEN

to provide alternatives that more aggressively addressed onsnow

user conflicts.2



* * *



2 Because we hold that the Forest Service did not violate NEPA by

failing to sufficiently address the issue of on-snow user conflicts, we

need not address the question of whether on-snow user conflicts are

outside the scope of the agency’s required NEPA analysis entirely

because they are “citizens’ subjective experiences,” Bicycle Trails

Council of Marin v. Babbitt, 82 F.3d 1445, 1466 (9th Cir. 1996), not the

“physical environment,” Metro. Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766, 772 (1983).

Big Meadow

Bend Municipal

Watershed

Dutchman Flat

._.._.._

Tumalo Mtn

Summit

Dutchman

Sno-Park

Sunrise

Mt Bachelor Lodge

Ski Resort 46

Proposed

Kapka Butte

Sno-Park

Snowmobile Trails __ Ski Trails

Watershed Boundary

K/A 2004/2005 Motorized Closure Areas

Pre-existing Motorized Closure Areas

0.5 IMiles

Areas Open to Winter Motorized Use

ER1577

Case: 14-35505, 03/30/2015, ID: 9477836, DktEntry: 13-7, Page 156 of 267

APPENDIX 1

The Forest Service violated neither the NFMA nor

NEPA in approving Kapka Sno-Park, and therefore the

judgment of the district court is

AFFIRMED.