Sierra Trail Dogs Motorcycle and Recreation Club v. United States Forest Service

• Court: District Court, D. Nevada
• Decided: July 6, 2020
• Docket: 3:18-cv-00594
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 SIERRA TRAIL DOGS MOTORCYCLE Case No. 3:18-cv-00594-MMD-CLB AND RECREATION CLUB, et al., 7 ORDER Plaintiffs, 8 v.

9 U.S. FOREST SERVICE, et al.,

10 Defendants. 11 I. SUMMARY 12 Plaintiffs1 challenge the U.S. Forest Service’s decision to modify the standard 13 governing off-highway vehicles (“OHVs”) in the Humboldt-Toiyabe National Forest—one 14 of many provisions adopted to protect the sage-grouse from extinction—as a “significant” 15 change requiring supplementation of environmental review within the framework of the 16 National Environmental Policy Act, 42 U.S.C. § 4331, et seq. (“NEPA”). Before the Court 17 are three cross motions for summary judgment: (1) Plaintiffs’ motion for summary 18 judgment (ECF No. 31); (2) Defendants’2 cross motion for summary judgment (ECF No. 19 37); and (3) Intervenor-Defendants’3 cross motion for summary judgment (ECF No. 40).4 20 Because the Court finds that Federal Defendants were not required to prepare a 21

22 1Plaintiffs are Sierra Trail Dogs Motorcycle and Recreation Club (“Sierra Trail Dogs”), Pine Nut Mountains Trails Association, American Motorcyclist Association District 23 36, California Four Wheel Drive Association, and The Blue Ribbon Coalition.

24 2Defendants are the United States Forest Service, Humboldt-Toiyabe National Forest, and William (“Bill”) Dunkelberger, the Forest Supervisor of Humboldt-Toiyabe 25 National Forest (collectively, “Federal Defendants”).

26 3Intervenor-Defendants are American Bird Conservancy, Center for Biological Diversity, Western Watersheds Project, and WildEarth Guardians. The Court permitted 27 them to intervene as of right. (ECF No. 34.)

28 4The Court has reviewed the parties’ response and replies. (ECF Nos. 39, 41, 44, 1 supplemental environmental impact statement (“SEIS”) before issuing the final record of 2 decision (“ROD”) containing restrictions on OHV events Plaintiffs challenge here—and as 3 further explained below—the Court will deny Plaintiffs’ motion, grant Federal Defendants 4 and Intervenor-Defendants’ cross motions, and direct the entry of judgment in Federal 5 Defendants’ and Intervenor-Defendants’ favor. 6 II. BACKGROUND 7 The following facts are undisputed and primarily derived from the administrative 8 record (“AR”). Plaintiff Sierra Trail Dogs hosts an event every year called the Mystery 250. 9 (ECF No. 1 at 11.) The Mystery 250 is a group trail ride or ‘enduro,’ where participants 10 spend two days riding their motorcycles through the desert on an annually-changing route 11 created by Sierra Trail Dogs. Historically, the Mystery 250 was held in mid-June. (Id. at 12 12.) However, because of the ROD, Sierra Trail Dogs had to move the Mystery 250 to 13 mid-July, and are now more limited in terms of the routes it can choose for the event. (Id.) 14 “To address the associated adverse impacts to Plaintiffs’ recreational and aesthetic, 15 procedural, and environmental interests caused by the [ROD], Plaintiffs filed this action.” 16 (ECF No. 31 at 13.) 17 The ROD is the product of a years-long administrative process to amend the forest 18 management plan (“the Forest Plan”) for the Humboldt-Toiyabe National Forest to protect 19 the greater sage-grouse bi-state distinct population segment (Centrocercus 20 urophasianus). (Id. at 7, 7-13; AR 36031.) Sage-grouse rely on sagebrush for survival, 21 and use different aspects of sagebrush habitats for different purposes. See Oregon Nat. 22 Desert Ass’n v. Jewell, 840 F.3d 562, 565-66 (9th Cir. 2016). “For instance, at leks, ‘open 23 areas surrounded by sagebrush,’ male sage grouse strut and compete for female mates, 24 displaying their elaborate plumage.” Id. at 566 (citation omitted). The Forest Plan has 25 many components, but Plaintiffs only challenge the restrictions the Plan imposes on 26 organized OHV events like the Mystery 250 (the “OHV Standard”). (ECF Nos. 1, 40 at 8.) 27 The Court will therefore only provide a brief summary of the Forest Plan preparation 28 process applicable to the OHV Standard here. 1 On November 30, 2012, Federal Defendants5 published notice of their intent to 2 prepare an environmental impact statement and elicit public comment on an amended 3 forest management plan for the Humboldt-Toiyabe National Forest to better protect the bi- 4 state sage-grouse. (ECF No. 31 at 9; AR 2036-2038.) On August 23, 2013, Federal 5 Defendants released a draft environmental impact statement (“DEIS”). (ECF No. 31 at 10; 6 AR 22659.) The DEIS presented two alternatives pertinent to the OHV Standard: the ‘no 7 action’ alternative, which would not place any additional restrictions on OHV events, and 8 the ‘proposed action,’ which contemplated some restrictions on when and where OHV 9 events could take place. (ECF No. 31 at 10; AR 22684-22685.) The public was then 10 allowed to comment on the DEIS. (ECF No. 31 at 10.) 11 In July 2014, Federal Defendants published a revised draft environmental impact 12 statement (“RDEIS”), which presented three alternatives: the ‘no action’ alternative 13 (“alternative A”); the ‘proposed action,’ which would place some restrictions on where and 14 when OHV events could take place (“alternative B”); and the ‘conservation alternative,’ 15 which would not allow any OHV events at any time (“alternative C”). (Id. at 11; AR 30285- 16 30286.) The proposed alternative B specifically included the following OHV Standard: 17 “[b]etween March 1 and May 15, off-highway vehicle events that pass within a 0.25 mile 18 of an active lek shall only take place during daylight hours after 10 am.” (ECF No. 31 at 19 11.) The public was then allowed to comment on the RDEIS. (Id.) 20 In February 2015, Federal Defendants simultaneously released their draft record of 21 decision (“Draft ROD”) and their final environmental impact statement (“FEIS”). (Id.) The 22 OHV Standard included in the FEIS as the proposed action was more restrictive of OHV 23 events than the OHV Standard included in the DEIS and RDEIS, providing, “[b]etween 24 March 1 and May 15, off-highway vehicle events that pass within 3 miles of an active lek 25 shall only take place during daylight hours after 10 a.m.” (Id.) The FEIS was not subject to 26 public comment. (Id. at 12.) However, the public could object to the Draft ROD. (Id.) While 27

28 5Really just the U.S. Forest Service, but the Court refers to all Federal Defendants 1 || Plaintiffs did not submit any objections, Federal Defendants received seven objections. 2 || (/d.) In an effort to resolve these objections, Federal Defendants proposed further 3 || modifying the OHV Standard to read: “[bJetween March 1 and June 30, off highway vehicle 4 || events that pass within 4 miles of an active or pending lek shall not be authorized.” (/d. at 5 || 12-13.) Plaintiff the Blue Ribbon Commission attended a teleconference that included 6 || discussion of this proposed modification of the OHV Standard, and then sent a letter 7 || attempting to object to it. (/d. at 13.) 8 But Federal Defendants nonetheless proceeded with incorporating the OHV 9 || Standard proposed in response to the objections to the Draft ROD in the Final ROD, 10 || signed by Defendant Dunkelberger on May 16, 2016. (/d.; AR 36029-36091.) The OHV 11 || Standard in the Final ROD provides: “[bJetween March 1 and June 30, off-highway vehicle 12 || events that pass within 4 miles of an active or pending lek shall not be authorized. Critical 13 || disturbance periods may shift 2 weeks back or forward in atypically dry or wet years based 14 || on observations of breeding/nesting.” (ECF No. 31 at 13.) As noted, the restrictions 15 || contained in this OHV Standard caused Plaintiff Sierra Trail Dogs to move the Mystery 16 || 250 to mid-July. (/d.) 17 Plaintiffs created a helpful summary table to illustrate the changes Federal 18 || Defendants made as the Forest Plan went through the procedural steps described above: 19 DEIS® RDEIS’ FEIS® RFEIS’ Final ROD" 20 Season unspecified 3/1-5/15 SAMS 3/1-5/15 BASBO a" Time unspecified before 10 am before 10 am before 10 am all day Lek Buffer unspecified 0.25 mile 3 miles 3 miles miles 24 Buffer Area unspecified 0.20sq.mile 28.27 sq.mile 28.27 sq. mile 50.27 sq.mile 25 || (ECF No. 44 at 12 (highlighting added, footnotes omitted).) Plaintiffs’ challenge, in gist, 26 || centers on the highlighted changes in the table above. Between the FEIS and the Final 27 || ROD, Federal Defendants extended the season when OHV events are restricted by six 28 || weeks, expanded the time restriction such that no OHV events may take place during that

1 season (instead of allowing them after 10 a.m.), and expanded the lek buffer radius from 2 3 to 4 miles (which, as Plaintiffs illustrate in the table, increases the buffer area around 3 each lek). According to Plaintiffs, “[t]hese changes create significant hardships and 4 adverse impacts of both practical and legal consequence, in large part because of the 5 significantly drier and hotter conditions in July compared to June, resulting in health and 6 safety risks, increased fire danger, and other potential resource impacts or complications.” 7 (ECF No. 1 at 15.) 8 Plaintiffs allege Federal Defendants violated NEPA because the magnitude of 9 these changes required Federal Defendants to prepare a SEIS instead of moving directly 10 to the Final ROD. (ECF No. 31 at 23-26; see also ECF No. 1 at 14.) In their Complaint, 11 Plaintiffs also include three other claims: violation of the National Forest Management Act, 12 16 U.S.C. § 1600, et seq. (“NFMA”) (id. at 2, 12-13); a claim involving special use permits 13 that incorporates Plaintiffs’ other claims for violations of NFMA and NEPA (id. at 15-16); 14 and violation of the Administrative Procedure Act, 5 U.S.C. § 551, et seq. (“APA”) (id. at 15 2, 16). 16 However, the parties all agree that this case rises or falls on the Court’s resolution 17 of the pending cross motions for summary judgment. (ECF Nos. 27 at 2, 31 at 7, 37 at 14 18 n.4, 40 at 30.) Thus, the Court’s legal analysis farther below focuses on the parties’ case- 19 dispositive NEPA arguments raised in these motions. 20 III. LEGAL STANDARD 21 “The purpose of summary judgment is to avoid unnecessary trials when there is no 22 dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 23 F.3d 1468, 1471 (9th Cir. 1994). Where, as here, review of an agency action is sought not 24 based upon a “specific authorization in the substantive statute, but only under the general 25 review provisions of the APA,” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990), the 26 Court does not determine whether there are disputed issues of material fact as it would in 27 a typical summary judgment proceeding. Rather, the Court’s review is based on the 28 administrative record. See Nw. Motorcycle Ass’n, 18 F.3d at 1472 (9th Cir. 1994). 1 The APA limits the scope of judicial review of agency actions. A court may reverse 2 an agency decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise 3 not in accordance with law.” 5 U.S.C. § 706(2)(A). An agency’s decision may be reversed 4 as arbitrary and capricious “if the agency has relied on factors which Congress has not 5 intended it to consider, entirely failed to consider an important aspect of the problem, 6 offered an explanation for its decision that runs counter to the evidence before the agency, 7 or is so implausible that it could not be ascribed to a difference in view or the product of 8 agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. 9 Co., 463 U.S. 29, 43 (1983). “To make this finding, the court must consider whether the 10 decision was based on a consideration of the relevant factors and whether there has been 11 a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 12 (1971). 13 In reviewing an agency’s decision under this standard, “the reviewing court may not 14 substitute its judgment for that of the agency.” Envtl. Def. Ctr., Inc. v. U.S. Envtl. Prot. 15 Agency, 344 F.3d 832, 858 n.36 (9th Cir. 2003). Rather, the function of the district court is 16 only to determine whether as a matter of law the evidence in the administrative record 17 permitted the agency to make the decision it did. See Occidental Eng’g Co. v. I.N.S., 753 18 F.2d 766, 769-70 (9th Cir. 1985). Although this review is narrow, “a reviewing court must 19 conduct a searching and careful inquiry into the facts.” Nw. Motorcycle Ass’n, 18 F.3d at 20 1471. 21 IV. DISCUSSION 22 The Court addresses all three cross motions together because the parties’ 23 arguments in the three motions entirely overlap. 24 A. NEPA 25 NEPA does not provide a private right of action. See Gros Ventre Tribe v. United 26 States, 469 F.3d 801, 814 (9th Cir. 2006). Thus, “[t]he judicial review provision of the APA 27 is the vehicle” for challenging an agency’s decision under NEPA. Turtle Island Restoration 28 Network v. U.S. Dep’t of Commerce, 438 F.3d 937, 942 (9th Cir. 2006); Gros Ventre Tribe, 1 469 F.3d at 814; see Lujan v. Nat’l Wildlife Fed’n, 497 U.S. at 882-83 (stating that judicial 2 review of agency action proceeds under the APA where the statute at issue, NEPA, does 3 not provide cause of action). 4 NEPA is a procedural statute that requires federal agencies to “assess the 5 environmental consequences of their actions before those actions are undertaken.” 6 Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 7 2004). NEPA provides for public participation in assessing a proposed action’s 8 environmental consequences, enabling the public to “play a role in both the 9 decisionmaking process and the implementation of that decision.” Robertson v. Methow 10 Valley Citizens Council, 490 U.S. 332, 349 (1989). Although NEPA lacks a substantive 11 mandate, its “action-forcing” procedural requirements help carry out a “national 12 commitment to protecting and promoting environmental quality.” Id. at 348. As part of 13 these action-forcing requirements, NEPA mandates that agencies considering “major 14 Federal actions significantly affecting the quality of the human environment” must, to the 15 fullest extent possible, prepare an EIS (environmental impact statement). See 42 U.S.C. 16 § 4332(C); see also 40 C.F.R. § 1508.11. 17 The EIS “shall provide full and fair discussion of significant environmental impacts 18 and shall inform decisionmakers and the public of the reasonable alternatives which would 19 avoid or minimize adverse impacts or enhance the quality of the human environment.” 40 20 C.F.R. § 1502.1. “[T]he EIS process should serve both to alert the public of what the 21 agency intends to do and to give the public enough information to be able to participate 22 intelligently in the EIS process.” State of California v. Block, 690 F.2d 753, 772 (9th Cir. 23 1982). 24 After an agency has prepared a draft or final EIS, the agency must issue a SEIS if 25 the “agency makes substantial changes in the proposed action that are relevant to 26 environmental concerns.” 40 C.F.R. § 1502.9(c)(1)(i). But “supplementation is not required 27 when two requirements are satisfied: (1) the new alternative is a ‘minor variation of one of 28 the alternatives discussed in the draft EIS,’ and (2) the new alternative is ‘qualitatively 1 within the spectrum of alternatives that were discussed in the draft [EIS].’” Russell Country 2 Sportsmen v. U.S. Forest Serv., 668 F.3d 1037, 1045 (9th Cir. 2011) (citation and 3 emphasis omitted). Indeed, a SEIS is required “only if changes, new information, or 4 circumstances may result in significant environmental impacts ‘in a manner not previously 5 evaluated and considered.’” N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 6 F.3d 1147, 1157 (9th Cir. 2008). 7 B. Analysis 8 The parties’ arguments in their cross motions place the Court’s review within this 9 Russell Country framework.6 Plaintiffs basically argue the change in the OHV Standard 10 between the FEIS and the Final ROD was too significant, and outside the spectrum of 11 alternatives discussed in the FEIS. (ECF No. 44 at 5, 11, 17-21.) Plaintiffs therefore argue 12 Federal Defendants violated NEPA by not preparing a SEIS before issuing the Final ROD. 13 Federal Defendants and Intervenor-Defendants counter that the changes in the OHV 14 Standard from the FEIS to the Final ROD fell within the spectrum of alternatives discussed 15 in prior draft documents, and were not so substantial as to require supplementation of the 16 EIS. (ECF Nos. 37 at 21-24, 40 at 25-30, 45 at 9-16, 46.) The Court agrees with Federal 17 Defendants and Intervenor Defendants. 18 /// 19

20 6Plaintiffs make three other arguments in their motion that the Court does not address in detail here. First, Plaintiffs affirmatively argue they have standing to prosecute 21 this case. (ECF No. 31 at 17-18.) However, neither Federal Defendants nor Intervenor Defendants dispute Plaintiffs’ standing. Moreover, the Court finds Plaintiffs have standing 22 because there is no dispute Federal Defendants’ actions caused the Sierra Trail Dogs to move the Mystery 250 to July, which harms the Sierra Trail Dogs because they would 23 rather have the event in June, and harms the other Plaintiffs because they have members who either have, or are planning to, participate in the Mystery 250, and would prefer it was 24 in June. Second, Plaintiffs argue Federal Defendants violated NEPA’s ‘range of alternatives’ requirement. (Id. at 18-23.) However, the Court agrees with Intervenor- 25 Defendants that Plaintiffs’ ‘range of alternatives’ argument is merely a different gloss on their core supplementation argument. (ECF No. 46 at 7-10.) Thus, the Court will not 26 address it separately. Third, Plaintiffs initially argued that the objection resolution process Federal Defendants undertook here unlawfully circumvented NEPA (ECF No. 31 at 27- 27 28), but later agreed with Federal Defendants that argument is also subsumed by the Court’s supplementation inquiry under Russel Country (ECF No. 44 at 23 (“Plaintiffs are 28 willing to accept that recognition and focus on the adequacy of disclosure and analysis 1 To start, the Court finds the OHV Standard adopted in the Final ROD fell within the 2 spectrum of alternatives discussed in the FEIS. See Russell Country, 668 F.3d at 1045 3 (stating this is one of two requirements for supplementation not to be required). Versions 4 of the Forest Plan from the RDEIS through the FEIS contained three alternatives, where 5 the no action alternative would have allowed the permitting process for events such as the 6 Mystery 250 to proceed as it had before, and the conservation alternative would have 7 outright prohibited events like the Mystery 250 at all times of year. (ECF No. 31 at 10-12.) 8 The OHV Standard adopted in the Final ROD falls between these two alternatives because 9 it places some limitations in terms of when and where events like the Mystery 250 can be 10 held, but allows them to occur. The Court further agrees with Defendants that the OHV 11 Standard adopted in the Final ROD is best characterized as a modified version of 12 alternative B with some more restrictive elements taken from alternative C, the 13 conservation alternative. (ECF Nos. 37 at 22-23, 40 at 27.) This is a permissible approach 14 that does not require supplementation. See Great Old Broads for Wilderness v. Kimbell, 15 709 F.3d 836, 854 (9th Cir. 2013) (finding supplementation was not required where “the 16 Selected Alternative is primarily made of elements from Alternatives 1, 3, and 4 that were 17 analyzed—as elements—in the final EIS.”). Indeed, the Court agrees with Intervenor 18 Defendants that “the final OHV Standard differed in degree, but not in kind, from the 19 alternatives the Forest Service had considered throughout the process.” (ECF No. 40 at 20 27.) 21 And while the Court finds Plaintiffs’ ‘bookends’ argument—that an agency cannot 22 comply with NEPA by presenting an ‘allow everything’ alternative, and an ‘allow nothing’ 23 alternative, and then calling whatever option it ultimately selects a midpoint option 24 between the two—persuasive to a point, it is ultimately unpersuasive here. (ECF Nos. 31 25 at 21-22, 44 at 13-14, 19.) First, as Intervenor-Defendants point out, Plaintiffs improperly 26 pulled the ‘bookends’ language out of a response to a question about grazing unrelated 27 to the OHV Standard. (Compare ECF No. 31 at 21 (citing AR 34465) with ECF No. 46 at 28 13 (explaining that AR 34465 and AR 36367 are responses to comments about grazing, 1 not the OHV Standard).) Second, and more importantly, Plaintiffs’ argument largely 2 ignores that Federal Defendants prepared an alternative B, which contained “(a) buffer 3 size; (b) seasonal restrictions; [and] (c) time of day restrictions[,]” like those ultimately 4 included in the Final ROD. (ECF No. 31 at 20.) Of course, the buffer size, seasonal, and 5 time of day restrictions Federal Defendants ultimately adopted in the Final ROD are more 6 restrictive in terms of allowing fewer OHV events than the restrictions would have when 7 Federal Defendants first considered alternative B in the RDEIS (or in subsequent drafts). 8 But the fact that Federal Defendants considered a similar midpoint option to the option 9 ultimately selected drains the persuasive force from Plaintiffs’ bookends argument. See, 10 e.g., Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 871 (9th Cir. 2004) 11 (“The EIS was not required to consider more mid-range alternatives to comply with 12 NEPA.”). And as pertinent here, the more restrictive buffer size, seasonal, and time of day 13 restrictions Federal Defendants ultimately adopted would have substantially similar 14 consequences to those they did consider in evaluating alternative C—protecting sage- 15 grouse habitat at the expense of events like the Mystery 250. See AR 36165 (noting that 16 “permit holders who still wanted to hold events or guide clients would need to identify 17 different locations and routes. Permit holders and applicants could incur additional costs 18 and longer timelines in order to obtain permission for their activity. Some past OHV event 19 participants might be deterred by changes in event locations and timing.”); see also 20 Westlands, 376 F.3d at 871-72 (explaining an agency need not consider other alternatives 21 that would have “substantially similar consequences” to those the agency did consider). 22 Further, the Court finds the OHV Standard adopted in the Final ROD was a minor 23 variation of the OHV Standard included in the FEIS such that Federal Defendants were 24 not required to prepare a SEIS. See Russell Country, 668 F.3d at 1045 (stating this the 25 other of two requirements for supplementation not to be required). Intervenor-Defendants’ 26 argument on this prong is intertwined with their argument that Federal Defendants’ 27 adoption of a more restrictive OHV Standard in the Final ROD does not trigger NEPA at 28 all because Federal Defendants made a choice that is more protective of the environment 1 than the OHV Standard included in the FEIS. (ECF Nos. 37 at 22-23, 40 at 25-26.) As 2 pertinent to both arguments, Federal Defendants found that the more restrictive OHV 3 Standard adopted in the Final ROD would better protect the sage-grouse and thus better 4 serve the purposes of the Forest Plan amendment process. See AR 036042, 036044. 5 Because the Court “may not substitute its judgment for that of the agency[,]” Envtl. Def. 6 Ctr., 344 F.3d at 858 n.36, the Court thus finds that OHV Standard adopted in the Final 7 ROD lessened the environmental impact of the plan. “That a modified alternative only 8 lessens environmental impacts may tend to show that the new alternative is a ‘minor 9 variation of one of the alternatives discussed in the draft EIS[.]”’ Russell Country, 668 F.3d 10 at 1048 (finding that, though modifications that lessen environmental impacts may 11 sometimes require supplementation, no supplementation was required under the facts of 12 that case). Accordingly, the fact that the more restrictive OHV Standard Federal 13 Defendants adopted in the Final ROD lessened environmental impacts weighs in favor of 14 finding it was a minor variation that did not require supplementation. 15 Other factors lend support to the finding that the OHV Standard adopted in the Final 16 ROD was a minor variation of the OHV Standard included in the FEIS. To start, of the 17 caselaw Plaintiffs rely on in the pertinent portion of their motion, only Block—where the 18 Ninth Circuit required supplementation—supports their position. (ECF No. 31 at 23-26 19 (relying on Block, 690 F.2d at 771, Russel Country, 668 F.3d at 1045, and Trustees for 20 Alaska v. Hodel, 806 F.2d 1378, 1383 (9th Cir. 1986)).) But see Block, 690 F.2d at 769 21 (finding that supplementation was required), Russel Country, 668 F.3d at 1045-49 (finding 22 that supplementation was not required), and Trustees for Alaska v. Hodel, 806 F.2d at 23 1383 (finding that the agency violated NEPA by not soliciting public comment, but not 24 addressing supplementation as pertinent here).) And to the contrary, the Court agrees with 25 Intervenor-Defendants that Russel Country’s discussion of modification of the dispersed 26 camping rule at issue in that case is both more analogous than Block, and supports 27 Defendants’ position here. (ECF No. 40 at 26.) In Russel Country, the Ninth Circuit found 28 the agency was not required to supplement in part because the change it made to the 1 dispersed camping rule decreased the adverse environmental impact of the rule as 2 previously proposed by the agency. See 668 F.3d at 1049. That makes Russel Country 3 particularly analogous here—more so than Block, where the plaintiffs were challenging 4 the Forest Service’s decision to designate some wilderness areas nonwilderness. See 5 Block, 690 F.2d at 760. 6 Moreover, the Court agrees with Federal Defendants that Granat v. U.S. 7 Department of Agriculture, 238 F. Supp. 3d 1242 (E.D. Cal. 2017) is more analogous to 8 this case, and provides persuasive authority supporting Defendants’ position that no 9 supplementation was required. (ECF No. 45 at 14-15.) The Granat court found that eight 10 changes similar to the changes Federal Defendants made to the OHV Standard here did 11 not require supplementation because they were minor changes that fell within the 12 spectrum of alternatives the agency had already considered. See 238 F. Supp. 3d at 1256. 13 Similarly, the Court agrees with Defendants that its prior decision in Western Exploration, 14 LLC v. U.S. Dep’t of Interior, 250 F. Supp. 3d 718 (D. Nev. 2017) supports Defendants’ 15 position—not Plaintiffs’—because in Western Exploration, unlike here, a major component 16 the agency added to its final plan was outside the spectrum of alternatives it had previously 17 considered. (ECF Nos. 31 at 22, 44 at 17, 45 at 13-14, 46 at 18-19 (discussing Western 18 Exploration).) As Intervenor-Defendants argue, alternative C always considered an 19 outright ban on OHV events, “whereas much of the 2.8 million acres at issue [in Western 20 Exploration] had not been slated for any protective designation in any alternative in the 21 prior EIS.” (ECF No. 46 at 19 (emphasis omitted).) 22 For these reasons, the Court finds that the OHV Standard adopted in the Final ROD 23 was a minor variation of the OHV Standard included in the FEIS such that Federal 24 Defendants were not required to prepare an SEIS, and did not violate NEPA. See Russell 25 Country, 668 F.3d at 1048-49 (finding no supplementation required when the “‘final 26 decision’ was a ‘minor variation’ and ‘qualitatively within the spectrum of alternatives’”). 27 Alternatively, the Court is persuaded by Federal Defendants’ argument that NEPA 28 did not require Federal Defendants to prepare a SEIS because the changes to the OHV 1 Standard are not ‘relevant to environmental concerns.’ (ECF Nos. 37 at 22, 45 at 11 2 (relying on Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1467 (9th Cir. 1996)).) 3 Plaintiffs make no attempt to distinguish Babbitt, but the Court finds it analogous here. 4 (ECF No. 44.) In Babbit, the Ninth Circuit found that the National Park Service was not 5 required to prepare a supplemental EIS when it amended one of its regulations to prohibit 6 mountain bikers from riding their bikes on a number of trails (mostly in the Marin 7 headlands) they had previously been allowed to ride. See 82 F.3d at 1456-57. Like Federal 8 Defendants here, the National Park Service “realized that it was imposing ‘certain 9 limitations’ on bicycle use but supported that decision by reference to the principles of 10 ‘public safety, resource protection, and the avoidance of visitor conflicts.’” Id. at 1455; see 11 also AR 36165 (recognizing that adopting the conservation alternative C would serve the 12 goal of reducing adverse environmental impacts to the sage grouse’s habitat, but would 13 restrict OHV users’ ability to hold events). In short, in Babbit, like here, the agency made 14 a choice that was more protective of the environment, not less, and thus was not required 15 to prepare a SEIS. See 82 F.3d at 1456-57, 1467. 16 Indeed, the Ninth Circuit rejected arguments made by the mountain-biking- 17 coalition-group-plaintiffs in Babbit similar to the arguments Plaintiffs make here. For 18 example, Plaintiffs here argue that forcing them to hold the Mystery 250 in July will 19 increase the risk of wildfire. (ECF No. 44 at 21.) Plaintiffs in Babbit argued that “the closing 20 of trails might force bicyclists to ride in other areas, thereby compromising the nature of 21 those areas.” 82 F.3d at 1457. The Ninth Circuit rejected this argument as speculative. 22 See id. But more generally, both arguments attempt to force the agency to consider 23 adverse environmental impacts caused by the plaintiffs’ user groups that may occur 24 regardless of the new rules adopted by the agency. Babbit and this case also share a 25 common thread in that the bikes in Babbit—and the OHVs here—harm the environment 26 (again, as determined by Federal Defendants here as to the sage-grouse). Thus, Babbit 27 suggests Federal Defendants should not have to prepare a SEIS when, as here, they 28 make a decision that protects the environment but negatively impacts the interests of user 1 groups whose users harm the environment. The Court therefore alternatively holds 2 Federal Defendants were not required to prepare another SEIS after making the OHV 3 Standard more restrictive because the changes Federal Defendants made to the OHV 4 Standard were not “relevant to environmental concerns” as that phrase is used in 40 5 C.F.R. § 1502.9(c)(1)(i). To hold otherwise would disregard NEPA’s purpose of “protecting 6 and promoting environmental quality.” Robertson, 490 U.S. at 348; but see Russell 7 Country, 668 F.3d at 1048 (stating modifications that lessen environmental impacts may 8 sometimes require supplementation). 9 Plaintiffs’ remaining arguments are unpersuasive. The Court will address two of 10 them here. Plaintiffs specifically argue that “[g]auging NEPA compliance against an FEIS 11 invites reversible error.” (ECF No. 44 at 9.) But the Court agrees with Federal Defendants 12 that “where the final approved action differs from the proposed action in the final EIS, 13 courts consider the final EIS rather than the draft EIS as the relevant point of comparison.” 14 (ECF No. 45 at 10.) See also Kimbell, 709 F.3d at 853-55 (comparing a final EIS to the 15 ROD and finding no supplementation was required under NEPA). This view also aligns 16 with a regulation upon which all parties rely—40 C.F.R. § 1502.9(c)(1)—which refers to 17 “either draft or final environmental impact statements[.]” Id. Finally, the Court also rejects 18 the other aspect of Plaintiffs’ argument that Federal Defendants had to prepare a SEIS 19 because forcing the Mystery 250 to be held in July increases the risk of wildfire, which is 20 that wildfires are relevant to environmental concerns. (ECF No. 44 at 21-22.) But as 21 Federal Defendants point out, that concern is best addressed in response to an application 22 from the Sierra Trail Dogs for a special-use permit to hold the Mystery 250 in July. (ECF 23 No. 45 at 15 (relying on Friends of Yosemite Valley v. Norton, 348 F.3d 789, 800 (9th Cir. 24 2003), opinion clarified, 366 F.3d 731 (9th Cir. 2004).) See also Norton, 348 F.3d at 800 25 (explaining that an “agency’s planning and management decisions may occur at two 26 distinct administrative levels”). 27 /// 28 /// 1 In sum, Federal Defendants did not violate NEPA as pertinent to Plaintiffs’ 2 challenge in this case. The Court will thus deny Plaintiffs’ motion, grant Defendants’ cross 3 motions, and direct entry of judgment in Defendants’ favor. 4 V. CONCLUSION 5 The Court notes that the parties made several arguments and cited to several cases 6 not discussed above. The Court has reviewed these arguments and cases and determines 7 that they do not warrant discussion as they do not affect the outcome of the motions before 8 the Court. 9 It is further ordered that Plaintiffs’ motion for partial summary judgment (ECF No. 10 31) is denied. 11 It is further ordered that Defendants William “Bill” Dunkelberger, Humboldt Toiyabe 12 National Forest, and United States Forest Service’s cross motion for summary judgment 13 (ECF No. 37) is granted. 14 It is further ordered that Intervenor-Defendants American Bird Conservancy, Center 15 for Biological Diversity, Western Watersheds Project, and WildEarth Guardians’ cross 16 motion for summary judgment (ECF No. 40) is granted. 17 The Clerk of Court is accordingly directed to enter judgment in Federal Defendants’ 18 and Intervenor-Defendants’ favor, and close this case. 19 DATED THIS 6th day of July 2020. 20

21 MIRANDA M. DU 22 CHIEF UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28