Montana Wilderness Association v. McAllister, 666 F.3d 549 (9th Cir. 2011). Matt Jennings I. INTRODUCTION In Montana Wilderness Association v. McAllister, 1 the United States Court of Appeals for the Ninth Circuit affirmed a district court s ruling 2 that the 2006 Gallatin National Forest Travel Management Plan (Plan) was arbitrary and capricious. 3 The court found that the U.S. Forest Service (Service) violated the Administrative Procedures Act (APA) because the Plan inadequately addressed the Montana Wilderness Study Act s obligation to maintain the study area s 1977 wilderness character. 4 Increased motorized use in the study area threatened its wilderness characteristics and failed to provide recreational users opportunities for solitude consistent with those that existed in 1977. 5 1 Mont. Wilderness Assn. v. McAllister, 666 F.3d 549 (9th Cir. 2011). 2 Mont. Wilderness Assn. v. McAllister, 658 F. Supp. 2d 1249 (D. Mont. 2009). 3 Mont. Wilderness Assn., 666 F.3d at 555. 4 Id. at 551. 5 Id. at 558. 1
II. FACTUAL AND PROCEDURAL BACKGROUND Congress passed the Wilderness Act in 1964, establishing the National Wilderness Preservation System. 6 wilderness character. 7 Under this Act, wilderness areas must be managed to preserve their Wilderness is defined in the Act as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. 8 In 1977, Congress passed the Montana Wilderness Study Act (Study Act), identifying nine areas in Montana to be reviewed by the Secretary of Agriculture to determine if each area should be designated wilderness or removed from study. 9 The Secretary s recommendations were subject to congressional action. 10 The study areas were to be administered... so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System. 11 The Hyalite Porcupine Buffalo Horn Wilderness Study Area in the Gallatin National Forest of Montana was one of the study areas designated under the Study Act. 12 Congress has never acted on the Secretary s recommendations. 13 Recreational activities in the Gallatin National Forest increased significantly between 1977 and 2002. 14 In 2006, the Service released a travel management plan to balance recreational use and management goals in the Gallatin National Forest, including in the study area. 15 The Service recognized that the increased use of snowmobiles, motorcycles and mountain bikes might degrade the area s wilderness character in comparison to a 1977 6 Id. at 551. 7 Id. at 552. 8 Id. at 551 (citing 16 U.S.C. 1131(c) (2006)). 9 Mont. Wilderness Assn., 666 F.3d at 552. 10 Id. 11 Id. (citing Pub. L. No. 95-110 3(a), 91 Stat. 1243 (1977)). 12 Id. 13 Id. 14 Id. at 552 53. 15 Mont. Wilderness Assn., 666 F.3d at 553. 2
baseline. 16 The Service restricted the area in which motorized use could occur, but did not account for an increase in volume of motorized use. 17 The Service contended that there was no reliable data on the increased volume of motorized use from 1977. 18 Furthermore, the Service determined that under the Study Act, only the physical characteristics of an area must be maintained for future designation, and no obligation existed to maintain the wilderness character for current users. 19 After the Service finalized the Plan, a coalition of environmental organizations filed a lawsuit claiming that the Plan violated the Study Act. 20 Other groups supporting motorized recreation sued separately arguing that the restrictions on where motorized use could occur were unlawful. 21 After consolidating the cases, the district court granted summary judgment for Montana Wilderness Association. 22 The district court concluded that the Service failed to account for the impact of the increased volume of motorized users on the wilderness characteristics in the study area. 23 The failure of the Service to account for increases in volume rendered the Plan arbitrary and capricious under the APA. 24 Additionally, the Service s failure to include historical motorized use data in the Final Environmental Impact Statement was a violation of its obligations under the National Environmental Policy Act (NEPA). 25 The Service appealed the district court s ruling. 26 16 Id. at 553. 17 Id. 18 Id. 19 Id. 20 Id. at 553 554. 21 Mont. Wilderness Assn., 666 F.3d at 554. 22 Id. at 554. 23 Id. 24 Id. 25 Id. 26 Id. 3
III. ANALYSIS The Ninth Circuit affirmed the district court s decision and held that the Plan was not in accordance with the APA because it failed to maintain the study area s wilderness characteristics and the Plan violated NEPA by dismissing the lack of data on motorized use as irrelevant. A. The Wilderness Study Act The Ninth Circuit reviewed the district court s decision to determine if the decision to enjoin implementation of the Plan was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law pursuant to the APA. 27 The court held that the Service erroneously determined that the obligation to maintain wilderness character applied only to physical characteristics and not to the enjoyment of the area s current users. 28 Because the Service dismissed the impact of the increased volume of motorized users on the area s wilderness characteristics, the Plan was arbitrary and capricious. 29 The Service argued that the Study Act required only that it maintain physical, inherent characteristics of the study areas to make them suitable for future wilderness designation. 30 Montana Wilderness Association argued that the Service must maintain the areas for current users in addition to making sure the physical characteristics were not damaged. 31 The Wilderness Act provided that wilderness has outstanding opportunities for solitude. 32 The court reasoned that solitude depends on a current user s perception of other users around him not just on the physical characteristics of the land. 33 The court interpreted the meaning of 27 Mont. Wilderness Assn., 666 F.3d at 554 555 (citing 5 U.S.C. 706(2)(A)). 28 Id. at 555. 29 Id. 30 Id. 31 Id. 32 Id. at 556 (citing 16 U.S.C. 1131(c)). 33 Mont. Wilderness Assn., 666 F.3d at 556. 4
solitude by referencing dictionary definitions. 34 It defined the term solitude as being alone or remote, secluded and solitary. 35 Furthermore, the court held that the Wilderness Act s language regarding opportunities for solitude included the experience of current users. 36 The court determined that under the Service s interpretation, activities such as loud and intrusive helicopter flights in unlimited numbers, which would erode wilderness character, would be permissible because they would have no physical effect. 37 Additionally, the Service s own 2006 Region 1 supplement to the Forest Service Manual explained that in maintaining wilderness character pursuant to the Study Act, conflicting recreational uses should be separated even though user conflict does not impact physical characteristics. 38 When the Service evaluated the wilderness characteristics of another wilderness study area in Montana, the Middle Fork Judith Wilderness Study Area, it focused on the wilderness experience of current users by finding, the opportunity to find natural quiet during the winter is the same now as in 1977. 39 The Service s focus on current users in other study area management plans undermined its assertion that the Wilderness Act had never been interpreted to include providing a wilderness experience to current users. 40 Nothing in the Plan explained how a current user could seek solitude in comparison to the solitude available in 1977. 41 The court qualified its ruling, holding that although the Service must ensure that the study area s overall 1977 wilderness character is not degraded, there is no requirement that it replicate 1977 conditions. 42 Instead, attempts to maintain 1977 wilderness characteristics could 34 Id. 35 Id. 36 Id. 37 Id. at 557. 38 Id. at 557 558. 39 Mont. Wilderness Assn., 666 F.3d at 557. 40 Id. 41 Id. at 558. 42 Id. at 559. 5
be approximate and qualitative. 43 Lastly, while the court recognized that the Service lacked historical data on increased volume of motorized recreational users, it directed the Service to do the best it can with the data it has, not to ignore the volume of use increase completely. 44 The court declined to dictate the manner in which the Service must compensate for the increased volume of motorized use. 45 B. National Environmental Policy Act The Ninth Circuit held that the Service failed to comply with NEPA in acknowledging that data was unavailable or incomplete. 46 The Service concluded that it could not obtain data on the volume of recreational use in the study area, but determined that it was not needed because it was not obligated to maintain opportunities for solitude. 47 The Service incorrectly determined that volume data was irrelevant under NEPA. 48 IV. CONCLUSION This case demonstrates the strict management requirements to maintain wilderness study areas in Montana consistent with wilderness designation. Despite Congress inaction regarding wilderness designation or release of wilderness study areas, the nine areas identified in the Study Act are to be maintained to protect the physical characteristics of a wilderness area as well as current opportunities for solitude. The growth in motorized use since 1977 puts pressure on study areas and challenges the Service to balance the legal obligations under the Study Act with demands of recreational users. However, in an effort to balance those interests, the Service is not authorized to go outside the language or intention of the Wilderness Act or the Study Act. 43 Id. 44 Id. 45 Mont. Wilderness Assn., 666 F.3d at 559. 46 Id. (citing 40 C.F.R. 1502.22 (2011)). 47 Id. at 560. 48 Id. 6