:: View topic - Hyalite-Porcupine-Buffalo Horn WSA Lawsuit

Gregb406

The Forest Service spent 5 years working through a travel plan for the Gallatin
National Forest that involved every user group, hundreds of hours of public meetings
and thousands of comments submitted by an invested and vocal citizenry concerned
about the future of our public lands. When the dust settled from this arduous
task, there were no winners or losers. Every user group gave up something to see
this process through to an equitable end. Unhappy with the outcome of this
democratic process, a lawsuit was filed in U.S. District Court in Missoula by the
Montana Wilderness Association, the Greater Yellowstone Collation, and subsequently,
The Wilderness Society. If this misguided litigation succeeds, mountain bikes would
be banned from the Hyalite Porcupine Big Horn Wilderness Study Area effecting most
of the riding south of Bozeman and east of Big Sky.

The Montana Mountain Bike Alliance feels there is a better way to resolve public
resource issues. A solid plan based on science, education, economics, good will and
the ability to share will do more for this spectacular piece of public land than
litigation ever will. We can work together for the good of all.

The following is a copy of the lawsuit. If you don’t have time to wade through
the entire legalese, be sure to read paragraph 12.

Case 9 :07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 1 of 12
Douglas L. Honnold
Timothy J . Preso
Jenny K. Carbine
Earthjustice
209 South Willson Avenue
Bozeman, MT 59715
(406) 586-9699
Fax: (406) 586-9695
dhonnold@earthjustice.org
tpreso@earthjustice .org
jharbine@earthjustice .org
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
MONTANA WILDERNESS ASSOCIATION)
and GREATER YELLOWSTONE
)
COALITION
)
) Case No. CV-07-39-M-DWM
Plaintiffs,
)
)
vs.
)
) COMPLAINT FOR DECLARATORY
KATHLEEN McALLISTER, Regional
) AND INJUNCTIVE RELIEF
Forester for Region 1 ; REBECCA HEATH, )
Supervisor of the Gallatin National Forest ; and )
UNITED STATES FOREST SERVICE,
)
)
Defendants.
)
)
INTRODUCTION
1 .
This case challenges the U .S . Forest Service's decision to increase motorized use
in a congressionally designated wilderness study area on the boundary of Yellowstone National
Park. The Gallatin National Forest, which is located in the Greater Yellowstone Ecosystem
adjacent to the north and west boundaries of Yellowstone National Park, contains approximately

Case 9:07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 2 of 12
1 .8 million acres of land boasting dramatic mountain landscapes, extensive wilderness and
wilderness-quality lands, and some of the finest habitat for rare and imperiled wildlife in the
United States . Increasingly, certain portions of the Gallatin Forest have also become a focus of
motorized recreation activity by riders of all-terrain vehicles, motorcycles, and snowmobiles.
2.
This case challenges the Record of Decision ("ROD") for the Gallatin National
Forest's Travel Management Plan ("Travel Plan") dated October 30, 2006, and the
Environmental Impact Statement which underlies that ROD . In that action, the Forest Service
approved expanded motorized and mechanized activities in the congressionally designated
Hyalite-Porcupine-Buffalo Horn Wilderness Study Area ("WSA"), in violation of a statutory
mandate to preserve the WSA's wilderness values.
3.
Plaintiffs allege that the Travel Plan and ROD are in violation of the Montana
Wilderness Study Act, the National Environmental Policy Act ("NEPA"), and the Administrative
Procedure Act ("APA").
JURISDICTION, VENUE, AND ADMINISTRATIVE REMEDIES
4.
Plaintiffs bring this action pursuant to the Administrative Procedure Act ("APA"),
5 U.S.C . § 551 et seq ., which waives the defendants' sovereign immunity . This Court has
jurisdiction over plaintiffs' claims pursuant to 28 U .S.C . § 1331 (federal question), and may
issue a declaratory judgment and further relief pursuant to 28 U .S.C . §§ 2201-02.
5.
Venue lies in this judicial district pursuant to 28 U .S.C. § 1391(e) because: (1)
defendants McAllister and Heath reside in this District ; (2) plaintiffs Montana Wilderness
Association and Greater Yellowstone Coalition reside in this District ; and (3) the land at issue
lies within the Gallatin National Forest, headquartered in Bozeman, MT . Venue is proper in the
Missoula Division because : (1) the appeal officer's decision, which constitutes the final agency

Case 9 :07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 3 of 12
action in this case, was made in Missoula, MT ; and (2) a substantial part of the events or
omissions giving rise to plaintiffs' claims occurred in this Division.
6.
Plaintiffs have attempted to resolve their claims administratively by appealing
portions of the Gallatin National Forest Travel Plan and ROD to the Forest Service pursuant to
36 C.F.R. § 215 . The Forest Service denied plaintiffs' appeal on March 20, 2007 . Plaintiffs
have exhausted all available administrative remedies.
PARTIES
7.
Plaintiff Montana Wilderness Association ("MWA") works to protect the values
of Montana roadless areas and the traditional, non-motorized outdoor recreation activities that
depend on those roadless areas and other public lands . MWA has 6,000 members, about 750 of
whom reside in the Madison-Gallatin Chapter region . Each of MWA's members and staff has a
deep interest in the protection of roadless lands now and for the future . They hike, backpack, ride
horseback, hunt, fish, watch wildlife, ski, and snowshoe throughout the Gallatin National Forest.
8.
Plaintiff Greater Yellowstone Coalition ("GYC"), is a non-profit 501(c)(3)
conservation organization with over 12,000 members, based in Bozeman, Montana, with offices
in Wyoming and Idaho. GYC has participated in all aspects of the Gallatin Travel Plan process,
including commenting on various agency proposals, participating in collaborative workshops,
and even conducting its own investigations to determine the impacts various travel designations
have on the Forest's resources and habitat . GYC's members regularly use all parts of the
Gallatin National Forest for a variety of activities, including hiking, hunting, wildlife viewing,
spiritual renewal, biological and botanical research, photography, and many other forms of
recreation .
3
Case 9:07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 4 of 12
9.
Defendant Kathleen McAllister is the Regional Forester for Region 1 of the U .S.
Forest Service. Defendant McAllister was the appeal officer for plaintiffs' administrative
appeals and signed the decision rejecting those appeals . Defendant McAllister is sued in her
official capacity.
10.
Defendant Rebecca Heath is the Supervisor of the Gallatin National Forest who
signed the Forest Service Record of Decision approving the challenged action . Defendant Heath
is sued in her official capacity.
11. Defendant United States Forest Service is a federal agency within the Department
of Agriculture . The Forest Service is responsible for managing the Gallatin National Forest, and
for approving the Travel Plan that is the subject of this litigation.
12.
Members of each of the plaintiff conservation groups use the Gallatin National
Forest, including the areas that are subject to the challenged aspects of the Travel Plan, for
recreational pursuits, including wildlife watching, cross-country skiing, snowshoeing, hiking,
and aesthetic enjoyment. The motorized and mechanized transport activity sanctioned by the
Travel Plan will deprive those members and individuals of the opportunity to enjoy quiet solitude
and serenity in the Hyalite-Porcupine-Buffalo Horn WSA . The legal violations alleged in this
complaint cause direct injury to the aesthetic, conservation, recreational, scientific, educational,
and wildlife preservation interests of members of the plaintiff organizations.
13.
Plaintiffs' aesthetic, conservation, recreational, scientific, educational, and
wildlife preservation interests have been, are being, and, unless the relief prayed for herein is
granted, will continue to be adversely and irreparably injured by defendants' failure to comply
with federal law . These are actual, concrete injuries, traceable to defendants' conduct, that
would be redressed by the requested relief. Plaintiffs have no adequate remedy at law.
4
Case 9:07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 5 of 12
THE NATIONAL ENVIRONMENTAL POLICY ACT
14.
The National Environmental Policy Act ("NEPA") "is our basic national charter
for protection of the environment ." 40 C.F .R. § 1500 .1(a). NEPA's twin aims are to ensure that
federal agencies consider significant aspects of the environmental impacts of their proposed
actions, and to ensure that agencies inform the public that environmental concerns have been
considered in agency decision-making.
15.
NEPA requires federal agencies to prepare an environmental impact statement
("EIS") in connection with all "major Federal actions significantly affecting the quality of the
human environment ." 42 U.S.C. § 4332(2)(C) . The EIS must detail, inter alia, "the
environmental impact of the proposed action" and "alternatives to the proposed action ." Id.
§ 4332(2)(C)(i), (iii) . NEPA further provides that agencies must "study, develop, and describe
appropriate alternatives to recommended courses of action in any proposal which involves
unresolved conflicts concerning alternative uses of available resources ." Id . § 4332(2)(E).
16.
NEPA's implementing regulations flesh out these statutory requirements . The
regulations provide that agencies must discuss "the environmental impacts of the alternatives
including the proposed action, any adverse environmental effects which cannot be avoided
should the proposal be implemented, [and] the relationship between short-term uses of man's
environment and the maintenance and enhancement of long-term productivity ." 40 C.F.R. §
1502.16.
17.
The regulations further provide that "[a]gencies shall insure the professional
integrity, including scientific integrity, of the discussions and analyses in environmental impact
statements." Id . § 1502 .24.
THE MONTANA WILDERNESS STUDY ACT OF 1977
Case 9:07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 6 of 12
18.
The Montana Wilderness Study Act of 1977, Pub . L . No. 95450, 91 Stat . 1243
(1977), designated nine Wilderness Study Areas ("WSAs") throughout the state, including the
Hyalite-Porcupine-Buffalo Horn WSA in the Gallatin National Forest . Congress directed the
Forest Service to "maintain [the WSA's] presently existing wilderness character and potential for
inclusion in the National Wilderness Preservation System ." Sec. 3(a), 91 Stat . at 1244. The
Final Environmental Impact Statement for the Travel Plan ("FEIS") identified four aspects of
wilderness character : natural integrity ; apparent naturalness ; opportunities for primitive
recreation experiences ; and opportunities for solitude . FEIS at 3-571.
19.
The Hyalite-Porcupine-Buffalo Horn WSA is a 155,000-acre swath of
undeveloped National Forest lands stretching from the northwest border of Yellowstone National
Park north to the southern terminus of the Gallatin River valley where Bozeman, Montana, is
located . The WSA encompasses the roadless core of the Gallatin Range and some of the best
grizzly bear habitat in the Yellowstone ecosystem . It also provides one of the premier
opportunities for primitive recreation in the Gallatin.
20.
Over recent years, technological improvements have led to a proliferation of
vehicles designed for and capable of off-road travel . Snow machines are now able to travel over
steep slopes and rougher terrain. High-elevation areas within the WSA previously inaccessible
to snow machines now receive frequent use . Motorcycle use has also increased in the WSA
since 1977 . Mountain bikes, which did not exist in 1977, now abound in the WSA . Both
summer and winter motorized and mechanized activities have therefore increased in both
intensity and spatial distribution in the WSA over the levels existing in 1977, at the time
Congress enacted the Montana Wilderness Study Act . These new activities scar landscapes with
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Case 9 :07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 7 of 12
motor vehicle trails, disturb and displace wildlife, and introduce engine noise and pollution into
otherwise pristine backcountry areas.
THE CHALLENGED DECISION
21
The Forest Service approved the Travel Plan and ROD for the FEIS on October
30, 2006 . The Travel Plan represents the first time in the history of the Gallatin National Forest
that the Forest Service has attempted to comprehensively analyze and identify travel standards
for the area . In the meantime, motorized and non-motorized activities on both designated and
non-designated trails have escalated to an untenable level . The Travel Plan is intended to
address increasing trail uses in the Gallatin National Forest by designating specific routes and
areas of the forest where various types of motorized and non-motorized uses are authorized . The
plan Incorporates various closures to motorized uses, but it also allows increased motorized uses
in a particularly ecologically important area in the Forest: the Hyalite-Porcupine-Buffalo Horn
WSA.
22.
Within the Hyalite-Porcupine-Buffalo Horn WSA, the Travel Plan authorizes
increased summer-time motorized and mechanized uses . The Travel Plan allows motorcycle use
of all trails that were open to such use in 1977, when the Wilderness Study Act was enacted,
without any limit on the numbers of such users or even any consideration of the change in
number of motorcycles in the area since that time . Although the FEIS does not assess the level
of actual motorcycle use in 1977, the evidence before the agency indicated that motorcycle use
on the WSA's trails has substantially increased in number and frequency since the 1977 Act.
This increased frequency of motorcycle activity, even if confined to the same trails as were used
in 1977, represents a degradation of the area's wilderness character that has not been studied by
the Forest Service .
7
Case 9 :07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 8 of 12
23.
The Travel Plan also authorizes mountain bike use on these same WSA trails.
Mountain biking is a mechanized activity that is inconsistent with wilderness character, and that
did not occur in the WSA in 1977 . The Forest Service did not address the aggregated mountain
bike-motorcycle impacts on wilderness character, despite evidence of intensified motorcycle use
and greatly increased mountain bike activity since 1977.
24.
Also within the Hyalite-Porcupine-Buffalo Horn WSA, the Travel Plan designates
routes and play areas for snowmobiles that were never used for that activity in 1977 . For
example, the Travel Plan allows snowmobile use in high-elevation areas along the Gallatin Crest
and into the east side of the Gallatin Range . Further, the Travel Plan does not limit the intensity
of snowmobile use to 1977 levels . By allowing such uses to proliferate across these landscapes,
the Forest Service has degraded the WSA's 1977 wilderness character.
FIRST CAUSE OF ACTION
(Violation of Montana Wilderness Study Act of 1977)
25. Plaintiffs hereby reallege and incorporate Paragraphs 1 through 24, supra.
26.
The Montana Wilderness Study Act of 1977, Pub . L . No . 95-150, 91 Stat . 1243,
established the Hyalite-Porcupine-Buffalo Horn WSA and directed that "the wilderness study
areas designated by this Act shall, until Congress determines otherwise, be administered by the
Secretary of Agriculture so as to maintain their presently existing wilderness character and
potential for inelusion in the National Wilderness Preservation System ." §3(a), 91 Stat . at 1244.
The Forest Service's decision to allow motorized and mechanized activities to increase beyond
the 1977 status quo violates the statutory mandate to "maintain [the] presently existing
wilderness character" of the WSA as of 1977, when the Act was passed.
8
Case 9:07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 9 of 12
27. The Forest Service's designation of motorcycle routes in the WSA violates the
Montana Wilderness Study Act because it does not consider the actual level, or intensity, of
motorcycle use on trails that were open to such use in 1977, as compared to the intensity of such
use that can be expected today under the agency's travel plan decision . Absent consideration of
actual motorcycle use levels in the Hyalite-Porcupine-Buffalo Horn WSA in 1977, the Forest
Service has no basis to conclude that the current authorization will maintain the area's 1977
wilderness character.
28. The Forest Service's decision to allow increased summertime motorized and
mechanized transport in the Hyalite-Porcupine-Buffalo Horn WSA in the form of aggregated
mountain bike and motorcycle use violates the Montana Wilderness Study Act because it does
not "maintain [the] presently existing wilderness character" of the WSA as of 1977, when the
Act was passed .
29. The Forest Service's decision to allow snowmobiles in areas within the Hyalite-
Porcupine-Buffalo Horn WSA that were inaccessible to snowmobiles in 1977, and to allow the
intensity of such use to increase without limitation, violates the Montana Wilderness Study Act
because it does not "maintain [the] presently existing wilderness character" of the WSA as of
1977.
30. The agency decision is thus arbitrary, capricious, and not in accordance with the
law, and must be set aside . See 5 U .S .C. § 706(2)(A).
SECOND CAUSE OF ACTION
(Violation of NEPA)
31. Plaintiffs hereby reallege and incorporate Paragraphs 1 through 30, supra .
Case 9:07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 10 of 12
32.
NEPA requires that in preparing an Environmental Impact Statement, agencies
must "insure the professional integrity, including scientific integrity, of the discussions and
analyses" in the document . 40 C .F .R. § 1502 .24. NEPA further requires that an Environmental
Impact Statement "shall state how alternatives considered in it and decisions based on it will or
will not achieve the requirements of [NEPA] and other environmental laws and policies ." Id . §
1502 .2(d) . The FEIS violates these requirements . The Forest Service is required under the
Montana Wilderness Study Act to maintain the wilderness character of the Hyalite-Porcupine-
Buffalo Horn WSA that existed in 1977 . However, the Forest Service. never undertook an
assessment of the WSA's 1977 wilderness character, including opportunities for solitude and
primitive recreation, that would enable it to determine whether the Travel Plan would degrade
wilderness character . Particularly with respect to motorcycle use in the WSA, the Forest Service
failed to establish the "baseline," i .e. the level and locations of motorcycle use in the WSA in
1977. In failing to establish an accurate baseline against which to compare the effects of the
proposed activity and with which to assess compliance with the Montana Wilderness Study Act,
the agency decision is arbitrary, capricious, and not in accordance with the law, and must be set
aside. See 5 U.S.C. § 706(2)(A).
33.
NEPA and its implementing regulations require that the Forest Service disclose .
and analyze the potential environmental impacts of the proposed action . 42 U .S.C . § 4332(2)(C);
40 C.F.R. § 1502 .16. The FEIS fails to disclose and analyze the impacts of the Gallatin National
Forest's Travel Management Plan to wilderness character of the Hyalite-Porcupine-Buffalo Horn
WSA. Specifically, the FEIS fails to disclose and analyze adverse impacts on the WSA's
wilderness character due to increased levels and spatial extent of: (1) summertime motorcycle
and mountain bike activity ; and (2) wintertime snowmobile activity . The agency decision is thus
10
Case 9 :07-cv-00039-DWM Document I Filed 03/28/2007 Page 11 of 12
arbitrary, capricious, and not in accordance with the law, and must be set aside . 5 U.S .C. §
706(2)(A).
REQUEST FOR RELIEF
THEREFORE, plaintiffs respectfully request that this Court:
1.
Declare that the Record of Decision violates the Montana Wilderness Study Act
of 1977 by failing to maintain the "wilderness character" of the Hyalite-Porcupine-Buffalo Horn
Wilderness Study Area as it existed at the time of the Act;
2.
Declare that the FEIS violates NEPA by failing to establish the baseline against
which to gauge motorcycle impacts in the Hyalite-Porcupine-Buffalo Horn Wilderness Study
Area;
3.
Declare that the FEIS violates NEPA by failing to disclose impacts of the Gallatin
National Forest's Travel Management Plan on wilderness character of the Hyalite-Porcupine-
Buffalo Horn Wilderness Study Area;
4.
Enjoin the Forest Service from allowing motorized and mechanized use in the
Hyalite-Porcupine-Buffalo Horn Wilderness Study Area that would violate the Montana
Wilderness Study Act;
5.
Award plaintiffs their reasonable fees, costs, and expenses, including attorneys
fees, associated with this litigation; and
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Case 9:07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 12 of 12
6
Grant plaintiffs such further and additional relief as the Court may deem just and
proper
. Respectfully submitted this 28th day of March, 2007.
/s/ Timothy J. Preso
Douglas L. Honnold
Timothy J . Preso
Jenny K. Harbine
Earthjustice
209 South Willson Avenue
Bozeman, MT 59715
(406) 586-9699
Fax : (406) 586-9695
Attorneys for Plaintiffs
12

hykbyk

Thanks for posting this Greg, They continue to pound on Mountain Bicycles. It is very sad. A link was added to http://IMBA.com/RegionOne to send comments to Tester,Rehberg,Baucus,and Schweitzer about this.

Gregb406

If someone has a way to load this page onto here that will make it display in a more user friendly manner, contact me and I'll send it to you to give a try.