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America Outdoors Association

October 19, 2010

America Outdoors Association Bulletin

Forest Plan for Recreation Activities Invalidated  

Eighth Circuit Upholds Superior Forest Plan.  Agency Adequately Considered Plan's Impact on Wilderness.

Helena Independent Record Opposes I-161 Initiative

Senate Committee Lists Approved Summer Activities for Ski Area Legislation

Forest Plan for Recreation Activities Invalidated 

The 6th Circuit Court of Appeals sided with a plaintiff who challenged the Forest plan in Huron-Manistee National Forests, MI over the agency’s failure to consider the quality of activities for bird watching and cross country skiing and to close Primitive and Semi Primitive areas to “gun hunting and snowmobiling”.  Kurt Meister successfully argued that the agency did not follow its own rules and coordinate the plan with the State of Michigan. Therefore snowmobiling and “gun hunting” activities would be duplicated on National Forests. 

Meister argued and the Court agreed that the agency must consider the quality of the visitor experience (for bird watching and cross-country skiing) and not just the amount of land set aside for a particular activity.  The 6th Circuit agreed with Meister’s contention that the Forest Service’s failure to restrict gun hunting and snowmobiling in areas set aside for Primitive Recreation —particularly in light of the circa 4.1 million acres open to hunting on state land, and the 6,500 miles of snowmobile trails there—is strong evidence that the Service did not comply with the coordination procedures (with the State) mandated by § 219.21(e) so far as gun hunting and snowmobiling are concerned.

The Court stated “to the extent feasible with present and proposed recreation activities of local and State land use or outdoor recreation plans, particularly the State Comprehensive Outdoor Recreation Plan, and recreation opportunities already present and available on other public and private lands, with the aim of reducing duplication in meeting recreation demands.”

Summary of the 6th Circuit Court of Appeals Ruling

First, the Service’s estimates of snowmobile and cross-country visitors to the Forests are arbitrary. Thus, the Service has not complied with § 219.21(a)(2)’s requirement of a demand-supply analysis.

Second, the Service has not complied with the requirement that it coordinate its recreational planning with that of the State of Michigan with the aim (to the extent No. 09-1712 Meister v. U.S. Dep’t of Agric., et al. feasible) of “reducing duplication in meeting recreation demands” with respect to gun hunting and snowmobiling. 36 C.F.R. § 219.21(e)(2000).

Third, the Service’s reasons for keeping pre-designation and club trails open to snowmobile use are arbitrary. Thus, the Service has not complied with § 219.21(g)’s mandate to minimize conflicts between off-road vehicle use and other uses and interests of the Forests.

Fourth, the Service violated the National Environmental Policy Act when it failed to consider whether to close Primitive and Semiprimitive Nonmotorized areas to gun hunting and snowmobile use, as Meister has proposed.

Each of these failures was material to the Plan’s development. To that extent, the Plan’s approval was arbitrary or without observance of procedures required by law. Given that holding, we have authority to “set aside” the Plan. See 5 U.S.C. § 706(2)(A), (D). We choose not to exercise that authority today, but instead grant the Service a reasonable time to adopt a plan that complies with the law. Ninety days from the date of our mandate seems to us ample time for that compliance. The district court may extend that period upon some showing that the court finds compelling; but in any event the Service shall comply forthwith.

Eighth Circuit Upholds Superior Forest Plan.  Agency Adequately Considered Plan's Impact on Wilderness.

In July 2004, the United States Forest Service issued a Land and Resource Management Plan for the Superior National Forest, MN (the “forest plan”). Sierra Club, Friends of the Boundary Waters Wilderness, and Northeastern Minnesotans for Wilderness (collectively, “Sierra Club”) sought judicial review of the forest plan in the district court. As relevant to this appeal, Sierra Club argued that the Forest Service’s assessment of the forest plan’s environmental impacts violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370h. In particular, Sierra Club claimed that the Forest Service had failed to consider the plan’s effects on the Boundary Waters Canoe Area Wilderness (“BWCAW”). The district court determined that the Forest Service had considered adequately the impacts on the nearby wilderness area in accordance with NEPA, and therefore granted the agency’s motion for summary judgment. Sierra Club v. Kimbell, 595 F. Supp. 2d 1021 (D. Minn. 2009).  After  the Sierra Club appealed, and the Eighth Circuit affirmed the lower Courts ruling .

Specifically, the Forest Service contended that because the forest plan is a programmatic document that does not authorize site-specific activities, the FEIS for the plan was not required to assess the plan's effects on the BWCAW in detail.  Instead, effects on the BWCAW of managing the Superior National Forest in accordance with the forest plan will be given detailed consideration in future EISes that will be issued in connection with site-specific actions.  Id. at 17 ("As site-specific projects are proposed, additional NEPA analysis will be conducted as appropriate.").

This ruling begs the question as to whether or not significant, self-guided activities are now going to require some specific NEPA documentation or authorization.  This case also involved snowmobiling and off highway vehicle use.

Helena Independent Record Opposes I-161 Initiative

The Helena Independent Record today editorialized in opposition to the I-161 Ballot Initiative to eliminate the out-of-state license set aside for outfitters.  The Initiative appears headed for a vote and the Record recognized the damage to Montana’s rural economy that would be caused by the ballot initiative.  Many hunters in the state have been told that elimination of the set-aside would increase their access to private lands for hunting, which is simply not the case.  To read the article, click here.

Senate Committee Lists Approved Summer Activities for Ski Area Legislation

The Ski Area Recreational Opportunity Enhancement Act of 2009 (S. 607), sponsored by Senators Udall, Barrasso, and Enzi is set to be considered in the lame duck session of Congress.  The Senate Energy and Natural Resources Committee recently listed permissible activities, which include zip lines, mountain bike trails, parks and hiking trails, frisbee golf courses and rope courses.  Tennis courts, water slides and water parks, swimming pools, golf courses and amusement parks are prohibited. The House passed a companion bill (HR 2476) last year which authorized zip lines and climbing walls.

Read the related article:  Resorts Add Zip Lines and Canopy Tours

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