FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILDEARTH GUARDIANS; FRIENDS

OF THE BITTERROOT; MONTANANS

FOR QUIET RECREATION, INC.,

Plaintiffs-Appellants,

v.

MONTANA SNOWMOBILE

ASSOCIATION; IDAHO SNOWMOBILE

ASSOCIATION,

Intervenors-Appellees,

UNITED STATES FOREST SERVICE;

LESLIE WELDON, in her official

capacity as Regional Forester for

Region 1; GLORIA MANNING, in her

official capacity as the appeal

deciding officer for the Chief of the

Forest Service; DAVE MEYER, in his

official capacity as Forest Supervisor

for the Beaverhead Deerlodge

National Forest,

Defendants-Appellees.

No. 12-35434

D.C. No.

9:10-cv-00104-

DWM

OPINION

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, Senior District Judge, Presiding
2 WILDEARTH GUARDIANS V. USFS

Argued and Submitted

November 7, 2013—Seattle, Washington

Filed June 22, 2015

Before: Alex Kozinski, Richard A. Paez,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Paez

SUMMARY*

Environmental Law

The panel affirmed in part and reversed in part the district

court’s judgment in an action challenging the United States

Forest Service’s decision to designate over two million acres

of public land in the Beaverhead-Deerlodge National Forest

for use by winter motorized vehicles.

Executive Order 11644, issued in 1972, directed agencies

to promulgate regulations concerning areas and trails

allowing off-road vehicles on public lands to minimize

environmental damages and minimize conflicts with other

recreational uses. The Secretary of Agriculture promulgated

the 2005 Travel Management Rule to improve

implementation of the Executive Order, and established the

“minimization criteria.” In 2010, the Forest Service issued a

Record of Decision implementing the travel management

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
WILDEARTH GUARDIANS V. USFS 3

decisions in a Revised Forest Plan, designating over two

million acres of the Forest for snowmobile use, which

decreased the area open to snowmobiles. 

Addressing plaintiffs’ challenges under the National

Environmental Policy Act, the panel held that the

Environmental Impact Statement prepared by the Forest

Service did not provide the public adequate access to

information about the impact of snowmobiles on big game

wildlife and habitat, and did not allow the public to play a

role in the decision making process. The panel reversed the

district court’s grant of summary judgment to the Forest

Service on this issue. The panel also held that the Forest

Service provided sufficient information to establish that it

took a “hard look” at the impacts of snowmobile use on nonmotorized recreational uses throughout the Revised Forest

Plan area, and the panel affirmed the district court’s ruling

that the Environmental Impact Statement sufficiently

analyzed these conflicts.

Addressing plaintiffs’ challenge to the Forest Service’s

compliance with Executive Order 11644, the panel reversed

the district court’s ruling that the Forest Service adequately

applied the minimization criteria in the Travel Management

Rule. The panel held that the Forest Service must provide a

more granular minimization analysis to fulfill the objectives

of Executive Order 11644, which the Travel Management

Rule was designed to implement. The panel agreed with the

district court that plaintiffs’ challenge to the Subpart C

exemption in the Travel Management Rule, which exempted

over-snow vehicles from compliance with the minimization
4 WILDEARTH GUARDIANS V. USFS

criteria, was not ripe for review because the Forest Service

did not apply Subpart C to justify its actions in this case.

The panel remanded for further proceedings.

COUNSEL

Jack R. Tuholske (argued), Tuholske Law Office, P.C.,

Missoula, Montana; Sarah Peters, Eugene, Oregon, for

Plaintiffs-Appellants.

Beverly F. Li (argued) and David Gunter, Attorneys, United

States Department of Justice, Environment & Natural

Resources Division; Christine R. Everett, Office of the

General Counsel, United States Department of Agriculture;

Ignacia S. Moreno, Assistant Attorney General, Washington

D.C., for Federal Defendants-Appellees U.S. Forest Service,

et al.

Paul A. Turcke (argued), Moore, Smith, Buxton & Turcke,

CHTD., Boise, Idaho, for Intervenors-Appellees Montana

Snowmobile Association, et al.
WILDEARTH GUARDIANS V. USFS 5

OPINION

PAEZ, Circuit Judge:

WildEarth Guardians, Montanans for Quiet Recreation,

Inc., and Friends of the Bitterroot, Inc. (collectively,

“WildEarth”), challenge the United States Forest Service’s

decision to designate over two million acres of public land in

the Beaverhead-Deerlodge National Forest (“Forest”) for use

by winter motorized vehicles, principally snowmobiles. 

WildEarth alleges that the Forest Service’s review of the

environmental impacts of snowmobiles under the National

Environmental Policy Act (“NEPA”)1 was inadequate in

several material respects. WildEarth also alleges that the

Forest Service failed to comply with the minimization

requirements of Executive Order 11644. We affirm in part,

reverse in part, and remand for further proceedings.

I.

At 3.35 million-acres, the Forest is the largest national

forest in the state of Montana. The island mountain ranges

within the Forest provide a variety of habitats spanning from

cold desert to alpine peaks. Over 300 terrestrial land species

live in the Forest, including grizzlybears, wolves, wolverines,

lynx, and a broad variety of “big game” species, such as mule

deer, white-tailed deer, black bear, moose, elk, bighorn sheep,

mountain goat, and antelope. The Forest is also nationally

renowned as a recreation destination. Recreational

opportunities include non-motorized activities such as

fishing, hunting, hiking, skiing, and mountain biking, as well

 

1

 42 U.S.C. §§ 4321–4370.
6 WILDEARTH GUARDIANS V. USFS

as motorized activities, including motorcycle riding and

snowmobiling.

In 2002, the Forest Service issued a notice of intent to

revise the Land and Resource Management Plan (“forest

plan”) for the Forest pursuant to the National Forest

Management Act, 16 U.S.C. § 1604. 67 Fed. Reg. 22,396

(May 3, 2002). The purpose of a forest plan is to guide

decisions regarding natural resource management and other

activity over a period of ten to fifteen years. Because a forest

plan may have a significant impact on the environment,

NEPA requires the Forest Service to prepare an

environmental impact statement.

In January 2009, after considering various alternative

plans, the Regional Forester signed and released a Record of

Decision (“ROD”) approving the Environmental Impact

Statement2(“EIS”) and adopting the Beaverhead-Deerlodge

Revised Forest Plan (“Revised Forest Plan” or “Revised

Plan”). The Revised Plan, which adopts “modified

Alternative Six,” covers eight “revision topics,” including

“Recreation and Travel Management,” which governs

snowmobile access within the Forest. The Revised Forest

Plan divides the Forest into twelve different “landscape

areas,” which are, in turn, divided into multiple “management

areas.” In 2010, the Forest Service issued a second ROD

(“2010 ROD”) implementing the travel management

decisions in the Revised Plan.

2 Subsequent to approval, additional edits were made to the Final

Environmental Impact Statement. These edits were contained in the

“Corrected Final Environmental Impact Statement.” All references to the

“EIS” are to this latter document.
WILDEARTH GUARDIANS V. USFS 7

At issue in this case is the designation in the Revised

Forest Plan of over two million acres, or 60%, of the Forest

for snowmobile use. As compared to prior forest plans,3the

Revised Plan decreased the area open to snowmobiles. The

revision, however, will not necessarily result in a reduction of

snowmobile impacts. There has been a sharp increase in

snowmobile use since the 1980s, and advances in technology

allow snowmobiles to reach altitudes and terrain not

previously accessible.

The Regional Forester acknowledged in the ROD that

“the unmanaged expansion of motorized uses[, including

snowmobiles,] has resulted in resource damage, wildlife

impacts, and competition and conflict between user groups.” 

Snowmobiles affect wildlife in part because they stress

animals and provoke a flight response during the winter

season, when the animals are particularly vulnerable to

depletion of their energy reserves. Because some species

avoid all motorized vehicles, snowmobiles can effectively

reduce the amount of available habitat. There is also

evidence that snowmobiles can disturb reproduction cycles of

wildlife species such as the wolverine. In addition to

disturbing wildlife, snowmobiles can interfere with nonmotorized winter recreation activities because of the noise

and pollution they generate.

WildEarth and other groups filed a number of

administrative appeals challenging the EIS and ROD. In

October 2009, the Reviewing Officer for the Forest Service

consolidated and rejected the appeals. WildEarth

 

3 The previous forest plans were created separately for the Beaverhead

National Forest (1986) and the Deerlodge National Forest (1987). In

1996, the forests were consolidated to achieve administrative efficiency.
8 WILDEARTH GUARDIANS V. USFS

subsequently filed suit in the United States District Court for

the District of Montana. Relevant to this appeal, WildEarth

alleged that: (1) the Forest Service violated NEPA because it

failed to analyze adequately the site-specific impacts of

snowmobile use on big game winter habitat and conflicting

recreational uses; (2) the Forest Service violated Executive

Order 11644, 37 Fed. Reg. 2877 (Feb. 8, 1972), and

Executive Order 11989, 42 Fed. Reg. 26,959 (May 24, 1977),

because it failed to apply specified criteria when designating

areas open to snowmobile use; and, (3) Subpart C of the 2005

Travel Management Rule (“TMR”), 36 C.F.R. §§ 212.80–81,

which exempts over-snow vehicles (“OSVs”) from

compliance with the minimization criteria in Executive Order

11644 and 11989, is invalid. The Montana Snowmobile

Association and the Idaho State Snowmobile Association

intervened as Defendants.

The parties filed cross-motions for summary judgment,

which the district court granted in part, and denied in part. 

Wildlands CPR, Inc. v. U.S. Forest Serv., 872 F. Supp. 2d

1064 (D. Mont. 2012). The court concluded that, although

the Forest Service’s environmental analysis of snowmobile

impacts on wildlife “lack[ed] clarity,” the analysis was

nevertheless adequate given the deference afforded to

agencies by the Administrative Procedure Act (“APA”),

5 U.S.C. § 704, and NEPA. Id. at 1078. Turning to

Executive Order 11644, the court concluded that the Forest

Service met the Order’s requirements in designating the

general areas to close to snowmobile use, but not in making

designations at the route-specific level. Id. at 1082. Finally,

the court ruled that WildEarth’s challenge to the exemption

for over-snow vehicles in Subpart C of the TMR was not ripe

because the Forest Service did not rely on Subpart C to justify

its actions under the Revised Forest Plan. Id. at 1083.
WILDEARTH GUARDIANS V. USFS 9

WildEarth timely appealed. We have jurisdiction

pursuant to 28 U.S.C. § 1291.

II.

We review de novo the district court’s grant of summary

judgment. Lands Council v. Powell, 395 F.3d 1019, 1026

(9th Cir. 2005). A final agency action “for which there is no

other adequate remedy in a court” is subject to judicial review

under the APA. 5 U.S.C. § 704; W. Radio Servs. Co. v. U.S.

Forest Serv., 578 F.3d 1116, 1122 (9th Cir. 2009). We may

set aside an agency’s action if it is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.” 

5 U.S.C. § 706(2)(A); Pauly v. U.S. Dep’t of Agric., 348 F.3d

1143, 1148 (9th Cir. 2003). “We must uphold agency

decisions so long as the agenc[y] ha[s] considered the

relevant factors and articulated a rational connection between

the factors found and the choices made.” City of Sausalito v.

O’Neill, 386 F.3d 1186, 1206 (9th Cir. 2004) (internal

quotations omitted). We have also said that an EIS is

adequate if it “contains a reasonably thorough discussion of

the significant aspects of the probable environmental

consequences.” Id. (internal quotations omitted).

III.

NEPA serves two fundamental objectives. First, it

“ensures that the agency, in reaching its decision, will have

available, and will carefully consider, detailed information

concerning significant environmental impacts.” Robertson v.

Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). 

And, second, it requires “that the relevant information will be

made available to the larger audience that may also play a

role in both the decisionmaking process and the
10 WILDEARTH GUARDIANS V. USFS

implementation of that decision.” Id. NEPA does not impose

substantive obligations on the action agency, but it does

establish “procedural requirements designed to force agencies

to take a ‘hard look’ at environmental consequences.” Earth

Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th

Cir. 2003). NEPA and the Council on Environmental

Quality’s (“CEQ”) regulations implementing NEPA, 40

C.F.R. §§ 1500–1508, prescribe the procedures that must be

followed in conducting environmental review. Churchill

Cnty. v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001). “We

must . . . strictly interpret the procedural requirements in

NEPA and the CEQ regulations to the fullest extent possible

consistent with the policies embodied in NEPA.” Id. at 1072

(internal quotations omitted).

WildEarth raises two NEPA arguments: first, that the

Forest Service did not adequately analyze the site-specific

impact of snowmobile use on big game wildlife, and second,

that the Forest Service’s analysis of conflicts between

snowmobiles and other recreational uses was insufficient. 

We examine these arguments in order.

A. Impact of snowmobile use on big game wildlife

As required by NEPA, the EIS is structured around

alternatives that provide varying degrees of protection for big

game wildlife by managing vehicle access.4

See 42 U.S.C.

4 The Forest Service’s approach to big game protection centers on

vehicle access management, which, based on an expert study, the Forest

Service identified as the primary management tool for elk. See A.G.

Christensen et al., Elk Management in the Northern Region:

Consideration in Forest Plan Updates or Revisions (1993). WildEarth

does not dispute that vehicle access is the proper management tool for big

game species generally.
WILDEARTH GUARDIANS V. USFS 11

§ 4332(C)(iii). In the Wildlife Habitat section of the EIS,

Table 176 compares the alternatives in terms of the

percentage of big game winter range closed to snowmobiles

throughout the Forest and in each landscape area. In the same

section, Table 175 compares the “open road density for

wildlife” in each alternative. In addition to this quantitative

data, the EIS includes for each alternative a short qualitative

discussion of the effects that snowmobiles would have on

wildlife habitat, particularly the big game winter range.

WildEarth argues that the EIS fails to comply with

NEPA’s procedural requirements because it does not:

(1) identify the location of the winter range for big game

animals; (2) establish where snowmobiles impact that range;

and (3) discuss what options are available to avoid the

concomitant impacts. We agree. The information provided

in the EIS meets neither the public disclosure purpose of

NEPA nor the specific requirements in the CEQ regulations.

The CEQ regulations state that, to comply with NEPA, an

agency “must insure that environmental information is

available to public officials and citizens before decisions are

made and before actions are taken. The information must be

of high quality. Accurate scientific analysis, expert agency

comments, and public scrutiny are essential to implementing

NEPA.” 40 C.F.R. § 1500.1(b). To fulfill NEPA’s public

disclosure requirements, the agency must provide to the

public “the underlying environmental data” from which the

Forest Service develops its opinions and arrives at its

decisions. See Idaho Sporting Cong. v. Thomas, 137 F.3d

1146, 1150 (9th Cir. 1998), overruled on other grounds by

Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en

banc). Alternately, the agency may incorporate publicly

available data underlying the EIS by reference. 40 C.F.R.
12 WILDEARTH GUARDIANS V. USFS

§ 1502.21; see Jones v. Nat’l Marine Fisheries Serv.,

741 F.3d 989, 998 (9th Cir. 2013). To incorporate underlying

data by reference, the agency must cite the source in the EIS

and briefly describe the content. 40 C.F.R. § 1502.21. A

source may be incorporated by reference only if “it is

reasonably available for inspection by potentially interested

persons within the time allowed for comment.” Id.; see also

40 C.F.R. § 1502.24 (requiring the agency to “make explicit

reference by footnote to the scientific and other sources relied

upon for conclusions in the [EIS]”).

Here, the Wildlife Habitat section of the EIS lists the

percentage of big game winter range protected in each

landscape area, but provides virtually no information about

where the big game winter range is actually located, nor the

concentration of game in each area. In other words, the EIS

does not make public the “underlying environmental data,”

nor specifically reference any documentary source that the

Forest Service relied upon in making its determinations on

snowmobile access. See Idaho Sporting Cong., 137 F.3d at

1150; 40 C.F.R. §§ 1502.21, 1502.24.

The Forest Service points to several parts of the EIS to

argue that it provided or referenced data adequately for the

public to assess snowmobile impacts on the big game winter

range. However, none are sufficient to satisfy NEPA’s

requirements.

First, the Forest Service refers to a “wolverine habitat

prediction” map in the EIS. This map uses the big game

winter range as an indicator of wolverine habitat because

wolverines depend on big game carrion for food. Notably,

the map is contained in an appendix that discusses impact on

wolverine denning habitat, not big game. The EIS does not
WILDEARTH GUARDIANS V. USFS 13

mention that the wolverine habitat map identifies the big

game winter range. Nor does the EIS explain anywhere that

the wolverine habitat prediction map serves as a proxy for a

map of the big game winter range. An interested person,

without more, would not be able to discern that a map entitled

“wolverine habitat prediction” provides the baseline data for

the tables depicting the big game winter range in the EIS. See

40 C.F.R. § 1502.21. And even if someone did manage to

make this connection, that wouldn’t be enough to access the

Forest Service’s baseline data, as the Forest Service concedes

that this map does not accurately depict the big game winter

range. The Forest Service states that it remedied this error by

using updated maps provided by Montana Fish, Wildlife &

Parks (“MFWP”) in its final analysis. But those maps are

neither included, nor referenced, in the EIS. “To take the

required ‘hard look’ at a proposed project’s effects, an agency

may not rely on incorrect assumptions or data in an EIS.” 

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

953, 964 (9th Cir. 2005) (citing 40 C.F.R. § 1500.1(b)). It

surely follows that the data the Forest Service provides to the

public to substantiate its analysis and conclusions must also

be accurate. If the wolverine habitat prediction map does not

accurately depict the big game winter range, and the Forest

Service ultimately worked from a different, accurate map,

then it is the accurate map that must be disclosed to the

public.5

5 The Forest Service refers to “polygon analysis” in the administrative

record as evidence that it revised its analysis on the basis of updated maps

from MFWP. The results of the polygon analysis are presented in a

spreadsheet that divides forest area into polygons and states how much of

the area in each polygon is big game winter range. The polygon analysis,

however, is not included in the EIS, and the Forest Service does not argue

that it is otherwise publicly available. Further, even if the polygon

analysis were available, the EIS does not reference the source of the data
14 WILDEARTH GUARDIANS V. USFS

Second, the Forest Service states that the information

WildEarth demands in the form of a map was “otherwise

provided” in the tables and accompanying qualitative

discussion in the EIS. As WildEarth acknowledges, the

Forest Service was not required to present the data in any

particular format. See Ecology Ctr. v. Castaneda, 574 F.3d

652, 667 (9th Cir. 2009) (“We defer to an agency’s choice of

format for scientific data.”). The issue, however, is one of

substance, not format. Without data on the location of the big

game winter range, the public was severely limited in its

ability to participate in the decision-making process.

For instance, MFWP’s comments show why geography

matters. It submitted extensive comments to the Forest

Service on the impact snowmobile use would have on moose,

one of the big game species, in several specific management

areas within the Boulder River Landscape. One comment

states that “[m]oose occur commonlythroughout[theBoulder

River-Sheepshead Management Area] and their needs should

be specifically addressed, including the importance of not

approaching or stressing them during the winter . . . . [I]t is

apparent that snowmobiles are driving cross-country through

willow communities, likely . . . reducing moose forage.” 

There is virtually nothing in the EIS responsive to the

MFWP’s comments.

The Forest Service maintains that it nonetheless did

adequately discuss impacts on moose. In support, the Forest

Service refers only to Table 176 in the EIS, showing the

percentage of big game winter range closed to snowmobiles,

upon which the analysis relied. Finally, without a map of the big game

winter range that corresponds to the polygon analysis, there is no way to

understand to which areas the polygons refer.
WILDEARTH GUARDIANS V. USFS 15

and a one-sentence statement that winter non-motorized

“allocations are designed to protect low elevation winter

range for deer, elk, and moose.” This paltry information does

not allow the public to determine where the range for moose

is located, whether the areas open to snowmobile use will

affect that range, or whether the Forest Service considered

alternatives that would avoid adverse impacts on moose and

other big game wildlife. In other words, the EIS does not

provide the information necessary to determine how specific

land should be allocated to protect particular habitat

important to the moose and other big game wildlife. Because

the Forest Service did not make the “relevant information”

available, Methow Valley Citizens Council, 490 U.S. at 349,

the public was limited to two-dimensional advocacy—

interested persons could argue only for the allocation of more

or less land for snowmobile use, but not for the protection of

particular areas. As a result, the Forest Service effectively

stymied the “public’s ability to challenge agency action.” 

Ecology Ctr., 574 F.3d at 667.

Third, the Forest Service argues that it adequately

considered impacts on big game wildlife because it

acknowledged that “motorized winter recreation can

adverselyaffect wildlife by causing them to move awaywhen

demands on their energy reserves are highest,” and provided

illustrative data. This data is contained in Table 179 of the

EIS showing the comparative probability that elk and mule

deer would take flight from all-terrain vehicles, bicycle

riders, horse riders, and hikers passing by at different

distances. There is no basis for concluding that this table

provides probative evidence of how big game wildlife would

respond to snowmobiles in winter.
16 WILDEARTH GUARDIANS V. USFS

The study from which Table 179 is drawn is specific to

mule, deer, and elk, not to big game species generally. 

Michael J. Wisdom, et al., Effects of Off-Road Recreation on

Mule Deer and Elk, Transactions of the 69th North American

Wildlife and Natural Resource Conference 531–50 (2004). 

Further, the study measures flight response to four-wheel allterrain vehicles, not snowmobiles. Id. at 534. And, notably,

the study measures flight response in spring, summer, and

fall, but not winter. There is no discussion in the EIS, nor the

study itself, whether this information is probative of how big

game, generally, would respond to snowmobiles in winter. 

Id. Nor is there any acknowledgment or explanation in the

EIS of the absence of data on snowmobile disturbance of

specific species. See 40 C.F.R. § 1502.22 (establishing that

if data is “incomplete or unavailable,” then “the agency shall

always make clear that such information is lacking”).

We have stated that NEPA “emphasizes the importance

of coherent and comprehensive up-front environmental

analysis to ensure informed decisionmaking to the end that

‘the agency will not act on incomplete information, only to

regret its decision after it is too late to correct.’” Blue

Mountains Biodiversity Project v.Blackwood, 161 F.3d 1208,

1216 (9th Cir. 1998) (quoting Marsh v. Or. Natural Res.

Council, 490 U.S. 360, 371 (1989)). Here, the Forest Service

asks us to assume the adequacy and accuracy of partial data

without providing any basis for doing so. NEPA requires

more.

In sum, we conclude that the EIS does not provide the

public adequate access to information about the impact of

snowmobiles on big game wildlife and habitat. The

information included in and referenced by the EIS therefore

does not allow the public to “play a role in both the
WILDEARTH GUARDIANS V. USFS 17

decisionmaking process and the implementation of that

decision.” See Methow Valley Citizens Council, 490 U.S. at

349. We reverse the district court’s grant of summary

judgment to the Forest Service on this issue.

B. Conflicts between snowmobiles and other recreational

uses

WildEarth next argues that the Forest Service violated

NEPA because it did not adequately address how the

snowmobile allocations in the Revised Plan affect other

winter recreational activities, such as cross-country skiing

and snowshoeing. We disagree and affirm the district court’s

ruling on this issue.

Under the Multiple-Use Sustained-Yield Act

(“MUSYA”), the Forest Service must administer national

forests in a manner that balances different uses and interests. 

16 U.S.C. §§ 528–31. In allocating land for different uses,

the Forest Service was bound by this “multiple-use mandate.” 

See 16 U.S.C. § 1604(e). As the ROD explains, “[d]ecisions

about the type and location of public recreation access are

among the most difficult for land managers because of the

delicate balance between competing public values and natural

resource protection.”

The Revised Forest Plan accomplishes this delicate task

by creating five categories of recreational opportunities:

(1) areas emphasizing motorized recreation; (2) areas where

motorized use is permitted in winter, but not in summer;

(3) areas where only non-motorized use is allowed,

“providing for quiet recreation year-round”; (4) “semiprimitive backcountry” areas with a “wide mix” of motorized

and non-motorized designations; and (5) designated
18 WILDEARTH GUARDIANS V. USFS

wilderness areas where motorized use and as well as

mountain biking are prohibited. Although snowmobile use is

permitted in roughly 60% of the forest, 100% of the forest is

open to at least some non-motorized winter recreation

activities. The Forest Service explained in the EIS that it

allocated recreational opportunities to meet “different user

expectation[s]” and to “create logical areas where recreational

settings could effectively be managed.”

WildEarth’s argument that the Forest Service did not

adequately review the consequences of its recreation

allotments is not supported in the record. The EIS includes

a section devoted to “recreation and travel management,”

which covers both summer and winter recreation activities. 

This section addresses the results of a survey estimating

visitation levels and the type of recreation in which visitors

engaged; discusses application of the “Recreation

Opportunity Spectrum,” a method used to “categorize,

evaluate, and monitor settings and opportunities based on the

natural, managerial, and social environment”; presents a

discussion of forest-wide recreation trends; and presents an

extensive comparison of recreational opportunities at the

landscape level under each alternative. The ROD and EIS

illustrate that the Forest Service collected information and,

based on that information, adopted guidelines that it applied

in its decision-making process. The Forest Service made that

information available to the public so that interested persons

could effectively participate in the process. See Methow

Valley Citizens Council, 490 U.S. at 349.

WildEarth specifically complains about the Forest

Service’s allocation decisions in the Mt. Jefferson

management area. The ROD notes that management of

snowmobile use will be difficult in this area because there is
WILDEARTH GUARDIANS V. USFS 19

not an “effective topographical barrier to illegal motorized

entry” into non-motorized areas. As we understand

WildEarth’s argument, the mere possibility of “illegal

motorized entry” triggered a responsibility under NEPA to

address in the EIS the possibility of non-compliance. NEPA,

however, does not require that the Forest Service

affirmatively address in an EIS every uncertainty. Cf. Lands

Council, 537 F.3d at 1001. Here, the Forest Service aimed to

balance recreational uses, acknowledged that the

effectiveness of its decision relies upon voluntary

compliance, created monitoring protocols for the area, and

stated that it plans to re-evaluate its decision if noncompliance occurs.

In sum, the Forest Service provided sufficient information

to establish that it took a “hard look” at the impacts of

snowmobile use on non-motorized recreation in these

particular management areas and throughout theRevised Plan

area. See Earth Island Inst., 351 F.3d at 1300.

IV.

We next turn to WildEarth’s argument that the Forest

Service failed to comply with the minimization requirements

in Executive Order 11644.6In 1972, President Richard Nixon

6 Although WildEarth frames its argument as a challenge to the Forest

Service’s implementation of both Executive Order 11644 and Executive

Order 11989, its argument is confined to the application of the criteria set

forth in 11644 § 3(1)–(3). Executive Order 11989, issued in 1977 by

President Jimmy Carter, amended Executive Order 11644 to require

additionally that agencies close areas or trails whenever the agency

determines that use of ORVs “will cause or is causing considerable

adverse effects on the soil, vegetation, wildlife, wildlife habitat or cultural

or historic resources of particular areas or trails.” Exec. Order No. 11989.
20 WILDEARTH GUARDIANS V. USFS

issued Executive Order 11644, directing agencies to

promulgate regulations that require that all “areas and trails”

allowing off-road vehicles (“ORVs”)7on public lands be

located in areas that:

(1) . . . minimize damage to soil, watershed,

vegetation, or other resources of the public

lands[;] (2) . . . minimize harassment of

wildlife or significant disruption of wildlife

habitats[; and,] (3) . . . minimize conflicts

between off-road vehicle use and other

existing or proposed recreational uses of the

same or neighboring public lands, and to

ensure the compatibility of such uses with

existing conditions in populated areas, taking

into account noise and other factors.

Exec. Order 11644 § 3(1)–(3).

Before 2005, the Forest Service permitted each national

forest, or other administrative unit, to designate areas and

trails open to ORV use on an ad hoc basis. See 36 C.F.R.

§ 295.2 (repealed 2005); George Cameron Coggins & Robert

L. Glicksman, 3 Pub. Nat. Resources L. § 31:8 (2nd ed.)

(2010). Recognizing that a sharp increase in ORV use,

coupled with “advances in [ORV] power, range, and

capabilities,” had made it impossible to fulfill the intent of

Executive Orders 11644 and 11989 without taking a more

active approach to regulation, Final Rule: Travel

 

7

 The Forest Service has acknowledged that snowmobiles are a type of

ORV for purposes of Executive Order 11644. Final Rule: Travel

Management; Designated Routes and Areas for Motor Vehicle Use,

70 Fed. Reg. 68264-01, 68273 (Nov. 9, 2005).
WILDEARTH GUARDIANS V. USFS 21

Management; Designated Routes and Areas for Motor

Vehicle Use, 70 Fed. Reg. 68264-01, 68265 (Nov. 9, 2005),

the Secretary of Agriculture8promulgated the 2005 Travel

Management Rule (“TMR”) to improve implementation of

the executive orders and establish a national system of roads,

trails, and areas with restricted ORV use. Id.; 36 C.F.R.

§§ 212.50–212.57. The relevant section of the TMR requires

that,

in designating National Forest System trails

and areas on National Forest System lands,

the responsible official shall consider effects

on the following, with the objective of

minimizing: (1) Damage to soil, watershed,

vegetation, and other forest resources;

(2) Harassment of wildlife and significant 

disruption of wildlife habitats; (3) Conflicts

between motor vehicle use and existing or

proposed recreational uses of National Forest

System lands or neighboring Federal lands.

36 C.F.R. § 212.55(b), (b)(1)–(3) (“minimization criteria”).

Notably, WildEarth does not frame its argument under the

TMR, but rather challenges the Forest Service’s

implementation of Executive Order 11644. Wildlands, 872

F. Supp. 2d at 1080–81. Where the Forest Service has placed

“restrictions or prohibitions” on snowmobile use within a

forest plan area, as it has here, the Forest Service must

comply with the TMR, including the section implementing

the criteria in Executive Order 11644. 36 C.F.R.

 

8 The Forest Service is an agency within the United States Department

of Agriculture.
22 WILDEARTH GUARDIANS V. USFS

§ 212.81(c).9 Thus, by challenging the Forest Service’s

implementation of Executive Order 11644’s minimization

criteria, WildEarth is necessarily challenging the

implementation of the TMR.

The district court concluded that Executive Order 11644

could be enforced through a private right of action. We need

not address that issue, however, because we construe

WildEarth’s claim as seeking to enforce the TMR. Under the

Administrative Procedure Act, an aggrieved person may

challenge an agency’s implementation of its own regulation,

see 5 U.S.C. §§ 702, 706; Gifford Pinchot Task Force v. U.S.

Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004).

The Forest Service argues that its analysis of snowmobile

allocations in the EIS satisfied the TMR.10 Specifically, the

Forest Service cites to generalized statements in the EIS that

it designed snowmobile allocations to “protect low elevation

winter range for deer, elk, and moose; . . . [to] protect[] high

elevation secure habitat for mountain goat and wolverine;[]

and to provide quiet winter recreation opportunities in

locations people can drive to” as evidence that it considered

9 Under the current regulations, if there are no restrictions or prohibitions

placed on snowmobile use, then Forest Service is not required to comply

with the TMR. 36 C.F.R. §§ 212.51(a)(3), 212.81(c). The parties refer to

this as the “Subpart C exemption,” which is discussed in more detail infra.

10 We do not interpret the minimization criteria as requiring the agency

to impose an “absolute, discernible limit” on snowmobile use, regardless

of whether there are competing uses or resources. Instead, our inquiry

assumes that the TMR requires the Forest Service to comply with the

minimization criteria in a manner that is feasible, prudent, and reasonable

in light of the agency’s multiple-use mandate. See Great Old Broads for

Wilderness v. Kimbrell, 709 F.3d 836, 853 (9th Cir. 2013).
WILDEARTH GUARDIANS V. USFS 23

the minimization criteria. The district court agreed,

concluding that the NEPA analysis, with its comparison of

the environmental impacts in each of the six alternatives,

adequately demonstrated that the Forest Service complied

with the minimization criteria in designating areas open to

snowmobile use.

We disagree. The EIS’s reference to plan-wide data and

general decision-making principles is inadequate under the

TMR. There is nothing in the TMR, or anywhere else, that

allows the Forest Service to designate multiple areas for

snowmobile use on the basis of a single forest-wide analysis

and general decisionmaking principles. Instead, the TMR

requires the Forest Service to apply the minimization criteria

to each area it designated for snowmobile use.

True, the TMR refers to a designated area as “an area on

National Forest System lands that is designated for motor

vehicle use,” 36 C.F.R. § 212.1, without specifying how

narrowly an area must be drawn. But it is apparent that the

Forest Service must provide a more granular minimization

analysis to fulfill the objectives of Executive Order 11644,

which the TMR was designed to implement. See Proposed

Rules: Travel Management; Designated Routes and Areas for

Motor Vehicle Use, 69 Fed. Reg. 42381-01, summary (July

15, 2004); 70 Fed. Reg. 68264-01, summary (Nov. 9, 2005). 

Executive Order 11644 directs affected agencies to

promulgate rules requiring application of the minimization

criteria for “designation of the specific areas and trails on

public lands on which the use of off-road vehicles may be

permitted.” Exec. Order 11644 § 3 (emphasis added).

Our conclusion does not require the Forest Service to

conduct an entirely separate environmental review for each
24 WILDEARTH GUARDIANS V. USFS

area and trail it designates for snowmobile use. The TMR

does not prevent the Forest Service from conducting an

analysis of multiple areas and trails at once, nor from

integrating NEPA and TMR compliance into a single

process.11 Indeed, the Forest Service has contemplated such

efficiencies in its rulemaking and guidance. See, e.g., 70 Fed.

Reg. at 68279 (explaining that “public involvement

associated with the NEPA process will often fulfill” the

public participation requirements in the TMR). If there is

data available pertinent to compliance with both NEPA and

the TMR, the Forest Service can certainly use it for both

purposes. What is required is that the Forest Service

document how it evaluated and applied the data on an areaby-area basis with the objective of minimizing impacts as

specified in the TMR. There is nothing in the record to

suggest that the Forest Service did so.

In fact, the EIS and ROD demonstrate that the Forest

Service neglected to consider the minimization criteria in the

TMR at all. At the end of each of sixteen sections in the

principal substantive chapter of the EIS devoted to

“environmental consequences analysis,” the Forest Service

identified the “[l]egal and [a]dministrative framework” for

the preceding section. For instance, the Recreation and

Travel Management section identifies seven “laws and

executive orders,” and five “regulation[s] and polic[ies]” that

form the legal and administrative framework for the analysis

11 We do not mean to imply that if the Forest Service complies with

NEPA, it necessarily will have satisfied the TMR criteria. Although

related, NEPA and TMR set forth separate requirements. See 70 Fed.

Reg. at 68268 (explaining that regulations implementingNEPAshould not

be conflated with regulations implementing the TMR, and that the TMR

does not address NEPA compliance).
WILDEARTH GUARDIANS V. USFS 25

in that section. There is not a single citation to the TMR,

Executive Order 11644, or Executive Order 11989 in the

Recreation and Travel Management Section, or any of the

other fifteen sections.

It is not clear why the Forest Service omitted the TMR

from its analysis. But, in one of the few references to the

TMR in the record, the ROD explains that the “Forest

Supervisor will issue a second ROD . . . making site-specific

decisions based on the Revised Forest Plan . . . that will

include further analysis to designate routes for motorized

travel under 36 C.F.R. [§] 212.” The second ROD, issued in

2010, states that it “enacts the allocations and standards set

forth in the 2009 Revised Forest Plan” and incorporates all its

underlying analysis. The 2010 ROD acknowledges that

“[t]he 2005 Travel Management Rule (36 C.F.R. [§] 212)

prescribed a new process for making site-specific decisions”

for route and area designations. Yet the 2010 ROD again

defers compliance with the TMR when it states that “[t]he

next stage of travel planning will include further analysis to

formally designate routes for motorized travel in areas where

motorized use is permitted under 36 C.F.R. [§] 212 Subpart

B.” This discussion in the 2010 ROD illustrates that, upon

implementation of the allocations in the Revised Forest Plan,

the Forest Service had not complied with § 212.55, but was

waiting until the “next stage of travel planning.” The Forest

Service does not explain when—or whether—this “next

stage” of planning occurred, nor whether it ever considered

the TMR for purposes of winter motorized travel

designations. There is no evidence in the record that it did.

Moreover, as various district courts have held, mere

consideration of the TMR’s minimization criteria is not

sufficient to comply with the regulation. In Idaho
26 WILDEARTH GUARDIANS V. USFS

Conservation League v. Guzman, for example, the district

court determined that, although matrices included in an EIS

showed that the Forest Service “met its duty to consider the

minimization criteria,” 766 F. Supp. 2d 1056, 1071 (D. Idaho

2011), the Forest Service nonetheless failed to comply with

the TMR because it did not include a “description of how the

selected routes were designed ‘with the objective of

minimizing’ impacts,” id. at 1073 (quoting 36 C.F.R.

§ 212.55(b)). As a result, there was “no way to know how or

if the Forest Service used [the information in the matrices] to

select routes with the objective of minimizing impacts.” Id.

at 1072. As another district court explained, the Forest

Service is under an “affirmative obligation . . . to actually

show that it aimed to minimize environmental damage when

designating trails and areas.” Cent. Sierra Envtl. Res. Ctr. v.

U.S. Forest Serv., 916 F. Supp. 2d 1078, 1096 (E.D. Cal.

2013); see also Defenders of Wildlife v. Salazar, 877 F. Supp.

2d 1271, 1304 (M.D. Fla. 2012).

Center for Biological Diversity v. United States Bureau

of Land Management, 746 F. Supp. 2d 1055, 1079–81 (N.D.

Cal. 2009) similarly noted that, “‘[m]inimize’. . . does not

refer to the number of routes, nor their overall mileage. . .

[but] to the effects of route designations, i.e. the [Bureau of

Land Management] is required to place routes specifically to

minimize ‘damage’ to public resources, ‘harassment’ and

‘disruption’ of wildlife and its habitat, and minimize

‘conflicts’ of uses.” Id.(quoting 43 C.F.R. § 8342.1(a)–(c)).12

12 Although there are some small distinctions between the Bureau of

Land Management’s and the Forest Service’s minimization criteria, they

are largely analogous. Compare 36 C.F.R. § 212.55(b) with 43 C.F.R.

§ 8342.1.
WILDEARTH GUARDIANS V. USFS 27

We agree with the approach taken by these district courts. 

First, mere “consideration” of the minimization criteria is not

enough to comply with the TMR. Rather, the Forest Service

must apply the data it has compiled to show how it designed

the areas open to snowmobile use “with the objective of

minimizing” “damage to . . . forest resources,” “harassment

of wildlife,” and “conflicts [with other]recreational uses.” 36

C.F.R. § 212.55(b), (b)(1)–(3). Second, the Forest Service

cannot rely upon a forest-wide reduction in the total area open

to snowmobiles as a basis for demonstrating compliance with

the minimization criteria. The TMR is concerned with the

effects of each particularized area and trail designation. The

minimization criteria must be applied accordingly.

In sum, the Forest Service’s designation of areas open to

snowmobile use was “not in accordance with law.” 5 U.S.C.

§ 706(2)(A). We therefore reverse the district court’s

summary judgment ruling on this claim as it relates to area

designations and remand for further proceedings.

V.

We turn to WildEarth’s final argument, that the district

court erred when it concluded that the challenge to Subpart C

of the TMR was unripe. As explained above, Subpart B of

the TMR implements the minimization criteria in Executive

Order 11644. 36 C.F.R § 212.55. Subpart C, however,

exempts over-snow vehicles (“OSV”) from compliance with

Subpart B if the Forest Service does not “propose[]

restrictions or prohibitions on use byover-snow vehicles.” 36
28 WILDEARTH GUARDIANS V. USFS

C.F.R § 212.81(c) (“Subpart C exemption”).13 WildEarth

argues that the Subpart C exemption is invalid because there

is no distinction between motor vehicles and OSVs in

Executive Order 11644. The district court determined that

because the Forest Service did not apply the Subpart C

exemption to justify its actions in this case, the issue was not

ripe for review. Wildlands, 872 F. Supp. 2d at 1082–83. 

Indeed, the Forest Service argued in the district court, and

continues to argue before this court, that it satisfied the

minimization criteria.

The ripeness doctrine serves to “prevent courts from

entangling themselves in abstract disagreements over

administrative policies, and also to protect the agencies from

judicial interference until an administrative decision has been

formalized and its effects felt in a concrete way by the

challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136,

148-49 (1967), abrogated on other grounds by Califano v.

Sanders, 430 U.S. 99 (1977). To determine ripeness, a

reviewing court considers: (1) whether the issues are fit for

judicial decision, and; (2) the hardship to the parties of

withholding review. Id. at 149. “Agency action is fit for

13

In 2013, a district court struck down the Subpart C exemption on the

ground that it violated Executive Order 11644. Winter Wildlands Alliance

v. U.S. Forest Serv., No. 1:11-CV-586-REB, 2013WL1319598 (D. Idaho

Mar. 29, 2013). The district court ordered the Forest Service to issue a

new rule compliant with Executive Order 11644 by September 9, 2014. 

The Forest Service has promulgated a proposed revision for public

comment. Use by Over-snow Vehicles (Travel Management Rule),

79 Fed. Reg. 34678-01 (June 18, 2014). Although the Forest Service did

not appeal the district court’s decision striking down the Subpart C

exemption, intervenors in the case did file an appeal, which was later

dismissed on the intervenors’ motion. See Winter Wildlands Alliance v.

U.S. Forest Serv., No. 13-35660 (9th Cir. Filed Sept. 19, 2013).
WILDEARTH GUARDIANS V. USFS 29

review if the issues presented are purely legal and the

regulation at issue is a final agency action.” Ass’n of Am.

Med. Colleges v. U.S., 217 F.3d 770, 780 (9th Cir. 2000)

(internal quotations omitted). In Lujan v. National Wildlife

Federation, 497 U.S. 871, 873 (1990), the Supreme Court

cautioned against engaging in judicial review before the

“controversy has been reduced to manageable proportions,

and its factual components fleshed out, by concrete action

that harms or threatens to harm the complainant.”

Although the TMR itself was a final agency action, the

Forest Service has not applied subpart C of the TMR in this

case. WildEarth’s challenge to the exemption is therefore a

purely abstract disagreement at this juncture. Moreover,

because the Forest Service has not invoked the exemption, the

record contains no facts concerning the exemption’s impact

to inform our decisionmaking. Finally, because we fully

review compliance with the minimization criteria under the

TMR, there is no hardship to WildEarth in declining to

exercise jurisdiction over the validity of the Subpart C

Exemption. In sum, we conclude that the district court did

not err in ruling that WildEarth’s challenge to the Subpart C

exemption is unripe.

VI.

We affirm the district court’s ruling that the EIS

sufficiently analyzed the conflicts between snowmobiles and

other recreational uses in the Revised Forest Plan. Further,

we agree that WildEarth’s challenge to the Subpart C

exemption in the TMR is not ripe for review. We reverse the

district court’s NEPA ruling, in part, because the Forest

Service did not properly disclose the information underlying

its analysis of snowmobile impacts on big game wildlife in
30 WILDEARTH GUARDIANS V. USFS

the EIS. We also reverse the district court’s ruling that the

Forest Service adequatelyapplied the minimization criteria in

the TMR. We remand for further proceedings consistent with

this opinion. The parties shall bear their own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.