IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KREG LINDBERG, 

Plaintiff, 

vs. 

UNITED STATES FOREST SERVICE, 

Defendant. 

AIKEN, Chief Judge: 

Case No. 6:14-cv-1511-AA 

OPINION AND ORDER 

Plaintiff Kreg Lindberg filed suit alleging defendant United 

States Forest Service ("Forest Service") violated the National 

Environmental Policy Act ( "NEPA") and the National Forest 

IYlanagement Act ("NFMA"). Plaintiff moves under Fed. R. Civ. P. 56 

for summary judgment on his NEPA and NFMA claims, seeking an order 

to set aside the Welcome Station Trail Connections Project Decision 

Notice ("DN") and Finding of No Significant Impact ("FONSI"), and 

an injunction prohibiting the Forest Service from taking action on 

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Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 1 of 36
the Project without first conducting an Environmental Impact 

Statement (~EIS") . In turn, the Forest Service filed a cross-motion 

for summary judgment on plaintiff's claims. After reviewing the 

parties' briefs and the administrative record, plaintiff's motion 

for summary judgment is denied, and the Forest Service's crossmotion for summary judgment is granted. 

BACKGROUND 

This dispute involves plaintiff's challenge to the Forest 

Service's approval of the Welcome Station Trail Connections Project 

(~Project") located in the Bend-Fort Rock Ranger District of the 

Deschutes National Forest ("DNF"), approximately one-half mile west 

of the City of Bend. The Project is located in an area with 

numerous recreation trails for residents and visitors to the DNF. 

The purpose of the Project is to provide a "Welcome Station" that 

will serve as a portal to public lands, a non-motorized paved trail 

connecting the Welcome Station to the City of Bend, and mountain 

bike trail connections to existing trail networks. 

The Forest Service identified the need for the Project based 

on the demand for non-motorized transportation pathways between the 

City of Bend and the DNF; the current option for non-motorists is 

to bike along the shoulder of the Cascade Lakes Highway. 

Furthermore, the Cascade Lakes Scenic Byway Corridor Management 

Plan1 places high priority on the development of a trailhead with 

1 This Plan, developed in 1996 and amended in 2011, was 

designed to protect and preserve the scenic, natural, and 

recreational qualities of the Cascade Lakes Scenic Byway for 

future generations. Based on community input, this Plan 

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an interpretive center and parking for forest users near the DNF 

boundary with Bend. AR 14742, 15252. 

To accomplish the purpose and need for the Project, the Forest 

Service proposes to construct a trailhead comprised of a Welcome 

Station with interpretive information and a gravel parking lot; a 

paved, ADA-accessible, non-motorized path; and three single-track 

mountain bike trails on National Forest System lands adjacent to 

and around the Cascade Lakes Highway. 

On January 31, 2013, the Forest Service published the Project 

on the DNF project webpage. AR 14755. Plaintiff initially supported 

such a project, asking the Forest Service to prioritize a pathway 

that would connect the west side of Bend to forest lands, and to 

create a parking lot in the location designated by this Project. AR 

8745-46, 12540. 

On February 6, 2013, the Forest Service began soliciting 

public comments regarding the Project through the NEPA "scoping" 

process. AR 14755. In his comments, plaintiff advocated for more 

off-leash dog areas, adding that trail recreation has negligible 

effects on wildlife. AR 12701-03. 

In April 2013, the Project was published in the Deschutes 

National Forest Schedule of Proposed Actions. The Forest Service 

published a draft Environmental Assessment ( "EA") in November 2 013, 

identified enhancement and development priorities for the 

corridor. The Plan identified creating hubs for trail 

connectivity and multi-modal transit opportunities as one way to 

meet the goal of preserving the Scenic Bywayas a major 

attraction in the Pacific Northwest. AR 14742, 15252. 

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and a 30-day public comment period was provided from November 23, 

2013 to December 23, 2013. Plaintiff submitted comments to the 

Forest Service, ho longer expressing support for the paved path 

component of the Project and asserting that the core issue was a 

lack of off-leash dog recreation areas near the Deschutes River. AR 

14606, 15186. 

In March 2014, the Forest Service issued the final EA for the 

Project, along with a Draft ON and FONSI. The District Ranger 

selected Alternative 2 from the EA, which has several components. 

First, a 0. 68 acre trailhead would be constructed featuring a 

"Welcome Station" with information and interpretive materials, and 

a gravel parking lot accommodating up to 40 cars with two handicap 

accessible spaces. The trailhead would be located on the south side 

of Cascade Lakes Highway and would serve as a connection portal to 

existing trail networks, while providing a safe place for visitors 

to park. Second, Trail 1, a 3.4 mile non-motorized, ADA-accessible, 

paved recreation path, would be constructed parallel to and within 

150 feet of the Cascade Lakes Highway. Trail 1 would connect the 

City of Bend's Haul Road trail to the new Welcome Station 

trailhead. Third, three mountain bike trails would be developed. 

Trail 2, a 4.8 mile dirt trail, running parallel to and within 150 

feet of Forest Service Road 41, would serve to alleviate congestion 

on the very popular Deschutes River Trail. Trails 3 and 4, totaling 

about 7. 4 miles, would be located north of the Cascade Lakes 

Highway and serve to reroute and connect existing trails. Fourth, 

1.1 miles of existing trail would be obliterated and rehabilitated. 

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The Forest Service manages the DNF lands at issue in this 

lawsuit pursuant to the Deschutes National Forest Land and Resource 

Management Plan (~Forest Plan") as amended by the Upper Deschutes 

Wild and Scenic River Comprehensive Management Plan (~UDWSR CMP"). 

The Forest Service worked with the Oregon Department of .Fish and 

Wildlife ( ~oDFW") when developing the Forest Plan to determine 

management objectives for elk and deer habitat in the DNF. 

Management measures were also developed for recreational use within 

the Ryan Ranch Key Elk Area (~Ryan Ranch KEA"), which the Project 

area partially overlaps. 

In May 2014, plaintiff filed an objection to the Forest 

Service's Draft ON and FONSI. The ODFW also filed an objection. The 

Forest Service held objection resolution meetings with the two 

objecting parties and formally responded to their objections on 

July 17, 2014. On July 29, 2014, the Forest Service issued the 

final ON and FONSI for the Project, deciding to proceed with 

Alternative 2 as presented in the final EA. 

On September 23, 2014, plaintiff filed this lawsuit, 

challenging the completeness of the EA and the Forest Service's 

decision to issue a ON and FONSI. Plaintiff contends that the 

Forest Service failed to take a ~hard look" at the Project's 

cumulative impacts to wildlife, namely elk and deer, and to the 

Upper Deschutes Wild and Scenic River (~UDWSR") corridor. Plaintiff 

contends that the cumulative impacts are significant, and therefore 

require the Forest Service to prepare an EIS. Plaintiff also 

maintains that the Project violates NFMA because it does not comply 

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with Forest Plan management requirements for the Ryan Ranch KEA or 

the UDWSR CMP requirements. 

The Forest Service timely answered plaintiff's complaint and 

lodged the Administrative Record with the Court. Plaintiff moved 

for summary judgment on February 27, 2015, and the Forest Service 

also moved for summary judgment on April 27, 2015. 

STANDARD OF REVIEW 

A plaintiff seeking to challenge a federal agency's compliance 

with NEPA must bring their claim under the APA. Under the APA, a 

court may set aside a final agency action if, after reviewing the 

administrative record, the agency's action is found to be 

"arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law." 5 U.S.C. § 706(2) (A); Natural Res. Def. 

Council v. Nat'l Marine Fisheries Serv., 421 F.3d 872, 877 (9th 

Cir. 2005) A decision is not arbitrary or capricious if the 

federal agency explained its action by articulating a "rational 

connection between the facts found and the choice made." Motor 

Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. 

Co., 463U.S. 29,43 (1983)(quotingBurlingtonTruckLinesv. U.S., 

371 U.S. 156, 168 (1962)); Nat'l Wildlife Fed'n v. U.S. Army Corps 

of Eng'rs, 384 F.3d 1163, 1170 (9th Cir. 2004). 

The scope of judicial review under the "arbitrary and 

capricious" standard is narrow and the court is not to substitute 

its judgment for that of the agency. Motor Vehicle Mfrs., 463 U.S. 

at 43. However, although the standard of review is deferential, it 

does not ~elieve the court from engaging in "a substant~al 

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inquiry [, ] a thorough, probing, in-depth review." Native 

Ecosystems Council v. U.S. Forest Serv., 418 F. 3d 953, 9 60 (9th 

Cir. 2005). 

DISCUSSION 

I. Standing 

As a threshold matter, the Forest Service claims that 

plaintiff lacks standing to bring this suit. To establish standing 

to bring a NEPA challenge to an agency action, a plaintiff must 

show injury-in-fact, causation, and redressability. Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). 

"[E]nvironmental plaintiffs adequately allege injury in fact when 

they aver that they use the affected area and are persons for whom 

the aesthetic and recreational values of the area will be lessened 

by the challenged activity." Sierra Club v. U.S. Fish & Wildlife 

Serv., 235 F. Supp. 2d 1109, 1122 (D. Or. 2002) (internal quotations 

and citation omitted). Thus, harm to the environment that "affects 

the recreational or even the mere esthetic interests of the 

plaintiff" will suffice to establish a concrete and particularized 

injury. Summers v. Earth Island Inst., 555 U.S. 488, 494 

(2009) (citing Sierra Club v. Morton, 405 U.S. 727, 734 (1972)). 

In addition to meeting the three-part constitutional standing 

test, a plaintiff must also meet the prudential standing 

requirement of showing that the injury claimed is within the "zone 

of interests" meant to be protected by the statute. Sierra Club v. 

U.S. Fish & Wildlife Serv., 235 F. Supp. 2d at 1122. At the summary 

judgment stage, a plaintiff must set forth by affidavit or other 

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evidence, specific facts to establish standing. Lujan, 504 U.S. at 

561. 

Plaintiff declares that over the past eight years, he has 

visited both the eastern section and western section of the Project 

area between twenty and twenty-five times each per year. Lindberg 

Decl. ~~ 4-5. Additionally, he has spent over one thousand hours in 

the Project · area as a visitor and volunteer, and expects to 

continue visiting the area in the future, as there are no 

substitutes in the surrounding area. Lindberg Decl. ~ 6. Plaintiff 

contends that the Project's proposed paved path through the DNF 

will drastically increase recreational use in the area, undermining 

the area's recreational quality, degrading wildlife habitat, and 

causing a negative aesthetic impact. Lindberg Decl. ~~ 9, 19. A 

plaintiff's repeated recreational use of the area, accompanied by 

a credible assertion of desired future use, can demonstrate that 

environmental degradation of the area is injurious to the 

plaintiff. Sierra Club v. U.S. Fish & Wildlife Serv., 235 F. Supp. 

2d at 1122. The Court finds that plaintiff has established injury 

in fact. 

Once injury in fact is established, the causation and 

redressiblity requirements are relaxed. Id. at 1123. Plaintiff has 

met the causation element, because his alleged injury is traceable 

to the challenged Project proposed by the Forest Service. Plaintiff 

also establishes redressibility, because an order from this Court 

requiring the Forest Service to prepare an EIS would redress 

plaintiff's alleged injury. Finally, plaintiff's injury falls 

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within the zone of interests that NEPA was designed to protect. Id. 

at 1122. Plaintiff has established standing to bring this action. 

II. NEPA Claims 

Plaintiff brings NEPA challenges against the Forest Service 

for failing to take a hard look at (1) the cumulative impacts to 

elk and deer caused by the Project and other projects in the area; 

(2) the cumulative impacts to the ODWSR corridor; and (3) 

additional NEPA "significance factors," all of which mandate 

preparation of an EIS according to plaintiff. Thus, plaintiff 

maintains that the Forest Service's decision to approve the Project 

without conducting an EIS violated NEPA's procedural requirements 

and was arbitrary and capricious under the APA. 

NEPA is "a procedural statute that does not mandate particular 

results, but simply provides the necessary process to ensure that 

federal agencies take a hard look at the environmental consequences 

of their actions." Sierra Club v. Bosworth, 510 F. 3d 1016, 1018 

(9th Cir. 2007) (citation and internal quotations omitted). Further, 

NEPA requires all agencies to prepare an EIS foi any "major Federal 

actions significantly affecting the quality of the human 

environment." 42 U.S.C. § 4332(2) (c). 

To determine whether the proposed federal action will be 

significant and trigger the EIS requirement, the agency first 

prepares an EA. An EA is a "concise public document" that provides 

an agency's analysis of the proposed action. 40 C.F.R. § 1508.9(a). 

The EA "shall include brief discussions of the need for the 

proposal, of alternatives [to the proposed action], of the 

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environmental impacts of the proposed action and alternatives, and 

a listing of the agencies and persons consulted." Id. § 1508.9(b). 

An EA "need not be extensive." Grand Canyon Trust v. U.S. Bureau of 

Reclamation, 623 F. Supp. 2d 1015, 1026 (D. Ariz. 2009). 

To determine whether a proposed action may have "significant" 

effects, the Council on Environmental Quality ("CEQ") requires the 

agency to consider the "context" of the action and the "intensity" 

of its impacts. 40 C.F.R. § 1508.27. When evaluating "intensity," 

ten factors are considered. Id. § 1508.27(b) (1)-(10) Here, the 

primary intensity factor is the effect of cumulatively significant 

impacts, which are "impact [ s] on the environment which result [] 

from the incremental impact of the action when added to other past, 

present, and reasonably foreseeable future actions 

Cumulative impacts can result from individually minor but 

collectively significant actions taking place over a period of 

time." 40 C.F.R. § 1508.7. 

If the agency concludes there is no significant impact 

associated with the proposed action, it may issue a Finding of No 

Significant Impact "accompanied by a convincing statement of 

reasons to explain why a project's impacts are insignificant," in 

lieu of preparing an EIS. Sierra Club v. Bosworth, 510 F.3d at 1018 

(citation and internal quotations omitted); See 40 C.F.R. § 

1508.13. 

The court's role in this process is to determine whether the 

agency took the requisite "hard look" that NEPA demands, by 

reviewing whether the EA contains "a reasonably thorough 

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discussion" of the significant aspects of the probable 

environmental consequences of the proposed action. See Nat'l Parks 

& Conservation Ass'n v. Bureau of Land Mgmt., 606 F.3d 1058, 1072 

(9th Cir. 2010) (citation and internal quotations omitted). 

A. Cumulative Impacts to Elk and Deer 

Plaintiff contends that the Forest Service failed to take a 

"hard look" at the potentially significant cumulative impacts to 

elk and deer caused by this Project and other projects and trails 

in the same area of the DNF. Plaintiff also asserts that the Forest 

Service was required to collect quantitative data on current and 

future recreational use levels in the Project area in order to 

adequately assess cumulative impacts to elk and deer. 

1. Impacts from Past and Present Projects 

Plaintiff asserts that the Forest Service's analysis of 

cumulative impacts to elk and deer was inadequate because it failed 

to consider the impacts of this Project in light of the DNF' s 

extensive trail network and other recreational enhancement 

projects. Plaintiff emphasizes that the Forest Service has approved 

numerous trail and recreational enhancement projects in the same 

area of the DNF as the Project. As a result, plaintiff contends 

that elk habitat within the Ryan Ranch KEA and deer habitat within 

designated mule deer winter range ( "MA 7") has been and will be 

compromised due to high trail density within the DNF. Plaintiff 

further argues that the Forest Service failed to consider the 

cumulative effects of the Project combined with the hundreds of 

miles of recreational trails in the area, the Cascade Lakes Welcome 

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Station project, and the Phil's Trailhead Enhancement project. 

The Forest Service asserts that it properly assessed the 

cumulative impacts to elk and deer, including the impacts from past 

and present projects in the Project area. The Forest Service 

defined the Project area to span across 20,277 acres of DNF lands, 

encompassing far more land than that occupied by the Project's 

trailhead and trails. AR 14783. To evaluate cumulative impacts to 

elk and deer, the Forest Service expanded the analysis area beyond 

the Project area to include the entire North Unit Diversion Darn 

Watershed, because the Forest Plan directs elk and deer analyses at 

larger scales. AR 14982. The Forest Service also developed a table 

of past, present, and future actions that overlap with the Project 

area. AR 14784-88. The table included the Cascade Lakes Highway, 

the development of summer and winter trail systems, the Cascade 

Lakes Welcome Station and Parking Lot, the Phil's Trailhead 

Enhancement project, and other projects. Id. Further, the Forest 

Service contends that the existing condition of an area reflects 

the aggregate impact of all prior human actions to that particular 

area; thus, cumulative impacts to the Project area can be assessed 

by using the current condition of the Project area as the baseline 

or the "no action alternative." AR 14784, 14858. 

The Court recognizes plaintiff's concern that the Project area 

overlaps with 31% of the Ryan Ranch Key KEA, which is one of eleven 

key elk habitat areas in the DNF. 2 AR 14751, 14856. The Project 

2 Rocky Mountain elk were chosen as a Management Indicator 

Species for the DNF due to their socioeconomic importance to the 

hunting community in central Oregon. The ODFW sets "management 

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proposes 10.8 miles of new trail and obliteration of 1.34 miles of 

trail within the Ryan Ranch KEA, increasing the overall nonmotorized trail density by 18%, from 1.49 mi/mi 2 to 1.77 mi/mi 2 • AR 

14822, 14858. However, after review of the record, the Court finds 

that the Forest Service's conclusion that the Project would cause 

only slight cumulative impacts to elk and deer is supported by a 

reasonably thorough discussion in the record, and its decision not 

to prepare an EIS was not arbitrary and capricious. 

In its analysis, the Forest Service discusses and cites to the 

Terrestrial Wildlife Specialist Report, which determined that elk 

move across sections of the Project area and "the additive effects 

of a new trail combined with the paved road and other existing 

trails may begin to alter elk movement." AR 15023. Nonetheless, the 

Project's effect on elk movement would be "slight." Id. 

Furthermore, according to scientific studies cited by the Forest 

Service, elk avoid roads at approximately 1/4 to 1/2 miles, or 1320 

to 2640 feet. 3 AR 14856. Relying on this data, the Forest Service 

purposefully placed Trail 1 and Trail 2 approximately 150 feet from 

existing roads in order to reduce impacts to elk habitat and to 

minimize human contact with elk. AR 14860, 15253. Trail 1 and Trail 

objectives" for the eleven key elk habitat areas to provide 

habitat conditions sufficient to sustain 1,500 summer elk and 340 

wintering elk. AR 14856. 

3 Early on in Project development, the Forest Service 

identified "Potential impacts on Key Elk Habitat Area" as one of 

two "Key Issues" that would be caused directly or indirectly by 

implementing the proposed action. Thus, impact to elk habitat was 

used to develop alternatives to the proposed action, prescribe 

mitigation measures, and analyze or disclose environmental 

effects. AR 14758-59. 

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2 are also located in areas partially managed under the Forest Plan 

for ~Intensive Recreation." AR 14771. Likewise, Trails 3 and 4 will 

be located in areas already experiencing high recreational use, and 

the Project's Welcome Station trailhead and gravel parking lot will 

be located in an area fully managed for ~Intensive Recreation." Id. 

In terms of the Project's impact on elk habitat, the wildlife 

biologist determined that elk hiding cover will not likely be 

affected by the Project: ~[t]ree removal will not reduce hiding 

cover as there is none mapped in the Project Area." AR 15023. 

Moreover, the number of trees slated for removal is not projected 

to convert thermal cover into an unsuitable condition for elk. AR 

Id. Additionally, no new open roads will be added; rather, the 

Forest Service expects to close roads in the Ryan Ranch KEA within 

the next five years. AR 14748-49, 14860. 

The Forest Service also considered the cumulative effects of 

this Project and the West Bend Vegetation Management Project, which 

proposes to thin, mow, and burn up to 292 acres of thermal cover in 

the Ryan Ranch KEA. AR 14860. The Forest Service discussed that the 

West Bend Project will reduce some elk habitat quality but will 

also increase forage ability. AR 14759, 14860. 

Finally, the Forest Service analyzed trend data for elk; elk 

population is currently stable to increasing, and is expected to 

remain stable across the DNF. AR 14858-60, 15021, 15025. Therefore, 

elk are considered ~secure" species within the DNF. AR 14841. Based 

on the findings articulated above, the Forest Service concluded 

that Project implementation could contribute a small negative 

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effect to elk habitat, which is insignificant at the forest scale. 

AR 14860. The Court finds that the Forest Service provided a 

convincing statement of reasons to support its conclusion that 

there would be no significant cumulative impacts to elk. 

Besides providing habitat for elk, the Project Area also 

includes 6,604 acres of mule deer habitat. 4 The Project's 

cumulative impact analysis indicates that the non-motorized trail 

density affecting deer in the Project area will increase from 3.21 

mi/mi 2 to 3.50 mi/mi 2 , a 9% increase. AR 14862. The Forest Service 

notes that most of the Project trails are within 150 miles of 

existing roads and thus will reduce fragmentation of deer habitat. 

The Project's Welcome Station and parking lot are outside of mule 

deer range, and any increase in human presence at the Welcome 

Station is not likely detectable because the existing area already 

includes parking and substantial recreational use. Id. The Forest 

Service also considered the cumulative effects of the West Bend 

Vegetation Management Project on mule deer, which proposes to treat 

800 to 1,500 acres of deer thermal cover. AR 14862-63. 

The Forest Service also discussed the effect of road closures 

due to the West Bend Project, which will improve habitat conditions 

for mule deer by reducing road density and will offset some of the 

impact from increased non-motorized trail use anticipated with the 

Project. Overall, the Forest Service found that cumulative impacts 

to mule deer would result in "a minor increase in habitat 

4 Like elk, mule deer were chosen as a Terrestrial Management 

Indicator Species due to their socioeconomic importance to the 

hunting community in central Oregon. AR 14860. 

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disturbance (<1% of the available habitat) and would be 

insignificant at the forest scale." AR 14863. 

The Court finds that the Forest Service took a hard look at 

past and present cumulative impacts to both elk and deer and 

provided a reasonably thorough explanation supporting its 

conclusion that the Project will not result in significant 

cumulative impacts. 

2. Impacts from Potential Future Projects 

Plaintiff also argues that the Forest Service's cumulative 

effects analysis for elk and deer did not consider the potentially 

significant impacts from at least four other reasonably foreseeable 

projects located in the Project area or on immediately adjacent 

lands. The Forest Service contends that many of the projects 

plaintiff argues should have been included in the cumulative 

effects analysis are too speculative and will be appropriately 

vetted under NEPA if they come to fruition. The Court addresses 

each project below. 

a. Sunriver-to-Lava Lands Path 

Plaintiff concedes that the Forest Service included the trail 

milage of the Sunriver-to-Lava Lands paved path (Phase 1) in the 

Pro j e c t ' s EA . 5 Pl. ' s Reply at 13 ; AR 14 8 21. However , citing 

5 Plaintiff accurately states that the Forest Service, Bend 

and Sunriver residents, and other stakeholders have a long range 

vision to ultimately construct a paved path that stretches from 

Bend to Sunriver. In 2008, the Deschutes County Committee on 

Recreation Assets recommended a paved route along Forest Service 

Road 41 between Bend and Sunriver to enhance cycling and 

recreation opportunities. AR 8823. In 2010, the Forest Service 

undertook an initial feasibility study of various path 

configurations that would connect Bend to Sunriver. Id. Phase 1 

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Klamath-Siskiyou v. Bureau of Land Mgmt., 387 F.3d 989 (9th Cir. 

2004), plaintiff contends that the Forest Service must do more than 

present total trail milage to meet NEPA requirements; rather, the 

Forest Service must analyze the increased use that the Sunriver-toLava Land path will generate in conjunction with the increased use 

generated by the Project's trails, in addition to the consequences 

of disrupting big game migration. 

The Forest Service clarifies that the Sunriver-to-Lava Lands 

path was not included in the cumulative effects table in the EA 

because it is not located within the 20,277-acre Project area; the 

Sunriver-to-Lava Lands paved path is located on the opposite side 

of the Deschutes River, miles away from the Project. AR 14 7 52. 

Regardless, the Forest Service maintains that it analyzed the 

effects of the Sunriver-to-Lava Lands path in the elk and deer 

analysis. 

The Court finds that, unlike Klamath-Siskiyou, where defendant 

did not analyze cumulative effects, here the Forest Service's 

conclusion that the Project will not cause significant cumulative 

impacts to elk and deer is reasonably supported in the EA. Further, 

its determination that the Lava Lands path did not need to be 

included in the cumulative effects table was not arbitrary or 

capricious due to the path's location outside of the expanded 

is an approved paved path that runs from Sunriver to the Lava 

Lands Visitor Center. Phase 2 is the paved path proposed in this 

Project that will run from the Bend-DNF boundary to the new 

Welcome Station proposed in this Project. The location for Phase 

3 has not been identified, but would connect Phase 1 and 2 

together by constructing a paved path from Sunriver to this 

Project's Welcome Station. AR 12553j 14771, 14816. 

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Project area. 6 Moreover, the Forest Service included "the portion 

of the Sunriver to Lava Lands Visitor Center paved path that has 

not been constructed yet" in the total number of non-motorized 

miles of trail in the Ryan Ranch KEA. The Forest Service's 

discussion in the EA considered potential displacement of elk due 

to non-motorized trails and found no significant cumulative 

impacts. AR 14821, 14858. The Forest Service properly analyzed the 

Sunriver-to-Lava Lands path. 

b. Sunriver-to-Welcome Station Path 

Next, plaintiff argues that the potential Sunriver-to-Welcome 

Station paved path (Phase 3) is a "reasonably foreseeable future 

action" under NEPA and should have been included in the Project's 

cumulative effects analysis. The Forest Servic~ argues that 

including this "speculative" path is premature, because the Forest 

Service has not implemented a time frame or settled on a route for 

this path. Should such a project go forward in the future, the 

Forest Service maintains that it will be subject to NEPA analysis. 

Plaintiff cites N. Plains as support for requiring the 

inclusion of the Phase 3 path in this Project's EA. N. Plains Res. 

Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1079 (9th Cir. 

6 In the EA chapter discussing cumulative effects, the 

Forest Service explains that in general, the analysis area would 

be the Project area; however, "[i]f the resource being analyzed 

necessitates extending the analysis area outside the project area 

for an appropriate analysis, then the extent of the analysis area 

is documented under each resource area below and in the 

specialist reports located in the project record." AR 14783. 

Because the Lava Lands path is located outside the general 

Project area, it was not listed in the table plaintiff refers to; 

however, this does not mean that it was not analyzed in the 

expanded analysis area for elk and deer. 

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Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 18 of 36
2011). In N. Plains, the court held that the agency acted 

arbitrarily and capriciously when it approved construction of a 

three-phase rail line without considering future coal bed methane 

(CBM) well developments and other mining projects in the project 

area, which would admittedly cause cumulative impacts, even though 

the agency had "described a time frame and a reasonably foreseeable 

development plan for CBM development in areas that overlap with the 

[] railroad plans." Id. (Surface Transportation Board had a Methane 

EIS report with actual numbers of wells to be drilled in locations 

overlapping with the train's rail line) . Conversely, here the 

Forest Service has not identified a time frame or identified a 

route for the Phase 3 path, nor is it preparing to make a decision 

regarding the Phase 3 path. Def.'s Resp. 27-28. 

Additionally, the Forest Service has not listed the project in 

its Proposed Actions, the NEPA scoping process has not been 

initiated, and no funding has been sought or secured for the Phase 

3 path. Def.' s Resp. 26-27, 30; AR 150937 • The Forest Service 

asserts that a future Sunriver-to-Bend path, which would result if 

the Phase 3 path were constructed to connect Phase 1 and Phase 2, 

will not escape meaningful NEPA review should the Phase 3 path be 

pursued in the future. 

The Court finds that the Phase 3 path is not a reasonably 

foreseeable action requiring analysis in this Project's EA. ~ 

7 In plaintiff's May 8, 2014 objection letter addressed to 

the DNF Reviewing Officer he writes, in reference to the Phase 3 

path: "National Environmental Policy Act (NEPA) analysis has not 

yet started, nor has funding apparently been secured, but the BFR 

clearly intends to implement the project." AR 15093. 

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Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 19 of 36
Jones v. Nat'l Marine Fisheries Serv., 741 F.3d 989, 1000 (9th Cir. 

2013) (agency did not fail to analyze the cumulative impacts of the 

challenged mining project despite plans to widen the scope of 

mining in the future because the future plans were speculative and 

not reduced to specific proposals); Envtl. Prot. Info. Ctr. v. U.S. 

Forest Serv., 451 F. 3d 1005, 1014-15 (9th Cir. 2006) (Forest Service 

did not act arbitrarily and capriciously when it excluded from the 

challenged project's cumulative effects analysis, a timber sale 

that was in the initial planning stages, where specifics of units, 

size, and treatment prescription had not yet been identified) . 

c. Haul Road Trail 

Plaintiff also contends that the Forest Service should have 

included the Bend Park and Recreation District's ("BPRD") proposal 

to pave its Haul Road trail in the Project's cumulative effects 

analysis. The Haul Road trail extends to the DNF boundary and will 

connect to the Project's Trail 1. Plaintiff maintains that the Haul 

Road trail should have been included in the cumulative effects 

analysis, because it will likely increase recreational use within 

the Project area. 

The Forest Service maintains that plaintiff is barred from 

raising the Haul Road trail claim because plaintiff did not 

challenge the omission of the Haul Road trail prior to this case. 

For example, in his May 8, 2014 objection letter to the final EA 

and draft DN/FONSI, plaintiff identified three recreation projects 

that he believed the Forest Service should have analyzed for 

potential cumulative effects to wildlife and recreational use 

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Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 20 of 36
capacity; the Haul Road trail was not one of them. AR 15092-93. As 

a result, the Forest Service contends that, because it never had 

notice or a chance to address plaintiff's concern during the 

administrative process, plaintiff is barred from litigating the 

issue now. 

Individuals and groups seeking to object to a Forest Service 

project must "structure their participation so as to alert the 

local agency officials making particular land management decisions 

of their positions and contentions." 36 C.F.R. § 218.14. The Court 

agrees with the Forest Service that plaintiff has waived his right 

to object to the Haul Road trail at this stage of review because he 

did not notify the Forest Service that he believed the Haul Road 

trail should be included in this Project's EA during the 

administrative process. 8 Dep't of Transp. v. Pub. Citizen, 541 U.S. 

752, 764-65 (2004) (respondents forfeited an objection to the EA 

that was not raised during the notice and comment period) (citing 

Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 

435 U.S. 519, 553 (1978)); N. Idaho Cmty. Action Network v. U.S. 

Dep't of Transp., 545 F.3d 1147, 1157 (9th Cir. 2008). 

d. Pedestrian Bridge Proposal 

Fourth, plaintiff asserts that BPRD' s proposal to build a 

pedestrian footbridge is a reasonably foreseeable action that the 

Forest Service should have included in this Project's cumulative 

8 Nonetheless, the Forest Service did account for the 

cumulative effects of the BPRD's plan to pave the Haul Road trail 

as a "baseline" environmental condition in the no action 

alternative and all other alternatives in this Project's EA. AR 

14802, 14807. 

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Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 21 of 36
effects analysis. The potential bridge would cross the Deschutes 

River connecting the Deschutes River Trail to trails in the DNF, 

but the bridge location has not been selected. AR 150939 • The 

Forest Service contends it was not arbitrary and capricious in 

declining to include the BPRD's proposal for a pedestrian brid~e in 

its cumulative effects analysis because it is not a reasonably 

foreseeable future action. 

First, the City of Bend has not yet decided if it is going to 

pursue the bridge project. AR 15217. Second, the State Scenic 

Waterway Designation prohibits bridges on private lands in the area 

the BPRD has proposed to locate the bridge, and this prohibition 

may also apply to federal lands. AR 15216. Third, should the BPRD 

make it over the nscenic Waterway Designation" hurdle, the Forest 

Service maintains that a Forest Plan and CMP amendment would likely 

be required, and the BPRD would need to apply for a Supplemental 

Use Permit (nSUP") prompting NEPA analysis. 

The Court agrees that the BPRD pedestrian bridge proposal is 

not a reasonably foreseeable action that must be included in the 

Project's cumulative effects analysis, given that the Forest 

Service is not pursuing the bridge or actively preparing to decide 

on one or more alternative means of accomplishing the bridge 

9 Plaintiff's objection letter cites to the BPRD's website 

for the potential bridge project, which indicates that a specific 

location for the bridge has not been determined and there is a 

likelihood that federal environmental processes will be required 

to proceed. The website reads: n . . should a new bridge 

location be selected, determined to be feasible, and pass all the 

required larid use approvals, a construction date could still be 6 

to 8 years out. 11 

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Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 22 of 36
proposal. See 36 C.F.R. 220.4(a) (1) The bridge project is 

speculative, and the Forest Service did not violate NEPA by failing 

to consider it in its EA. 

In sum, a court must be "'at its most deferential' when 

reviewing scientific judgments and technical analyses within the 

agency's expertise." N. Plains, 668 F.3d at 1075 (quoting Balt. 

Gas & Elc. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 

(1983). In other words, this Court is not to substitute its 

judgment for that of the agency. N. Plains, 668 F.3d at 1075. After 

review of the comprehensive record in this case, the Court cannot 

find that "the record plainly demonstrates that [the agency] made 

a clear error in judgment." Id. ( citation and internal quotations 

omitted). The Forest Service provided a convincing statement of 

reasons, discussed above, explaining why the combined impacts of 

the existing and projected trail network will produce no 

significant cumulative impacts to eik and deer. 

3. Quantitative Data on Recreational Use 

Plaintiff contends that the Forest Service failed to quantify 

current recreational use levels and future estimated use levels, 

which he asserts are necessary to analyze whether use of the 

Project's trails and other trails in the existing DNF trail network 

may cumulatively cause significant impacts to elk and deer. 

The Forest Service responds that the EA and Terrestrial 

Wildlife Specialist Report adequately assess cumulative impacts 

from recreational use in the Project area, combined with the 

effects of a potential increase in recreational use from 

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Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 23 of 36
implementation of the Project. Early on in the NEPA process, the 

Forest Service determined that miles of trail within the Ryan Ranch 

KEA was the best metric to evaluate the potential effects to elk 

from increased recreational use and used this metric to develop the 

action alternatives for the Project. 

Plaintiff correctly asserts that the Project would increase 

non-motorized trail density within the Ryan Ranch KEA and therefore 

likely increase recreational use within the area. The Project area 

overlaps with 31% of the Ryan Ranch KEA and would cause nonmotorized trail density in that 31% section to increase by 18%. AR 

14751, 14822, 14858. Notably, the Forest Plan does not specify a 

maximum or limit to non-motorized trail density in the Ryan Ranch 

KEA. AR 14759. 

Nonetheless, plaintiff argues that the Forest Service is 

required to include 

cumulative effects 

quantified recreational use numbers in its 

analysis, citing N. Cascades Conservation 

Council v. U.S. Forest Serv., 98 F. Supp. 2d 1193 (W.D. Wash. 

1999). In N. Cascades, the court found that the Forest Service 

failed to properly consider the negative effects of increased motor 

vehicle use on wildlife outside of the "narrowly defined" project 

area. N. Cascades, 98 F. Supp. 2d at 1201. The court noted that the 

challenged project had not been analyzed in the context of the 

entire off-road vehicle trail system to which three trail projects, 

including the challenged project, were tied. Id. 

However, here the Forest Service analyzed a Project area that 

was much broader than the Project's trails in order to capture the 

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Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 24 of 36
impacts of the connecting trail network. The Forest Service also 

explained that it does not have quantitative data on the number of 

recreational users in the Project area; thus, miles of nonmotorized trail within the Ryan Ranch KEA was selected as the best 

measurement for evaluating the effects of increased recreation to 

elk. AR 14 72 6-2 7, 14821, 15217. The wildlife biologist for the 

Project noted that it is difficult to quantify the effect of 

increased human visitation or recreation on elk; non-motorized 

trail mileage was used as a measurement instead. AR 14824, 14983-

84. In his own email to the Forest Service, plaintiff noted that a 

scientific study found no measurable effect of recreation on mule 

deer population. AR 10075. Similarly, other Project comments agreed 

that non-motorized trails have "low to zero impact upon wildlife." 

AR 12714. 

"The court defers to agency expertise on questions of 

methodology unless the agency has completely failed to address some 

factor, consideration of which was essential to a truly informed 

decision whether or not to prepare an environmental impact 

statement." N. Cascades, 98 F. Supp. 2d at 1202 (citing Inland 

Empire Pub. Lands Council v. Schultz, 992 F.2d 977, 981 (9th Cir. 

1993)). The Court finds that the Forest Service did not violate 

NEPA by failing to obtain or project quantitative measurements of 

current or future recreational use levels within the Project area. 

B. Cumulative Impacts to UDWSR Corridor 

Plaintiff also contends that the Forest Service failed to take 

a "hard look" at the cumulatively significant impacts to the 

Page 25 - OPINION AND ORDER 

Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 25 of 36
quality and capacity of recreational use within the UDWSR corridor 

caused by the Project and other related projects. Plaintiff 

believes the numerous recreational projects in the area will bring 

tens of thousands of new users to the Ryan Ranch KEA and UDWSR 

corridor. AR 15093. Plaintiff contends that the _Forest Service 

should have analyzed whether the Project's components, which will 

link to the Deschutes River Trail system, comply with the UDWSR's 

Management Plan R-1 standard that sets the non-commercial annual 

use capacity at 44,000. AR 5168. 

The Forest Service asserts that it did appropriately analyze 

the cumulative effects of recreational use, because the 20,277 acre 

Project area included "miles of the Deschutes River corridor, 

including the Meadow, Lava Island, Big Eddy, Aspen, Dillon Falls, 

and Slough recreation sites in the river corridor." Def.'s Resp. at 

34; AR 14746. The Forest Service also emphasizes that none of the 

Project components, including the trailhead, paved path, and 

mountain bike trails, are located in any riparian areas, AR 14753, 

14 8 8 4; in fact, the closest a Project trail ever comes to the 

Deschutes River is one-half mile. AR 14929. Importantly, the Forest 

Service maintains that the UDWSR Management Plan R-1 Standard 

applies only to site designation and development within the UDWSR 

corridor, and not to pass-through use of the corridor resulting 

from developments in other areas of the DNF. AR 14901. Furthermore, 

the Forest Service contends that R-1 does not mandate recreationist 

counts within the UDWSR corridor; such monitoring is contingent on 

funding availability. AR 5206, 5214. The Forest S~rvice maintains 

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Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 26 of 36
that impacts of increased recreational use were accounted for; even 

with the "no action alternative," recreational use was determined 

to increase as Bend's population increases. AR 4793. 

This Court finds that the Forest Service adequately assessed 

the cumulative effects of recreational use within the UDWSR 

corridor. First and foremost, all of the Project's components, 

including "[t]rail and trailhead construction [are] located 

entirely outside of the Upper Deschutes Wild and Scenic River 

corridor." AR 15263, 14750, 14753-54, 14883. The Court emphasizes 

that the Project area used for the impact analysis is much broader 

than the Project's trailhead, paved path, and dirt trail 

components. AR 14 7 54, 152 63. The Forest Service expanded the 

analysis area in order to "encompass all the trail systems proposed 

trails could provide connections to. The larger analysis area was 

established to facilitate recreation and wildlife analysis." AR 

14 7 50. Thus, while 1, 8 4 4 acres of the Project area are located 

within the UDWSR corridor, none of the Project's components will be 

located within the UDWSR corridor. AR 14749. 

Granted, the Project's new trailhead, ADA-accessible paved 

path, and mountain bike trails could bring new recreationists to 

the DNF, who may then use trails within the UDWSR corridor; but the 

Forest Service analyzed this impact: "The increase in parking 

capacity and availability of new recreation opportunities may lead 

to an increase in use and encounters, however, the connectivity 

among the trail systems and the mileage of trail available would 

provide a trail system that is able to accommodate existing use and 

Page 27 - OPINION AND ORDER 

Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 27 of 36
growth." AR 14815. In fact, the Forest Service and members of the 

public suggest that the Project's trails will reduce congestion on 

the heavily used Deschutes River Trail, located in the UDWSR, by 

creating alternative routes for recreationists. AR 12713-14, 12747, 

14808, 14926-27. 

In sum, the Forest Service made a rational conclusion th~t the 

DNF trail system and Project components will accommodate growth and 

not cause significant cumulative impacts to the UDWSR corridor. 

Furthermore, the Court agrees that the R-1's non-commercial annual 

use capacity limit is intended for development within in the 

corridor, and does not apply to pass-through visitor use within the 

corridor as a result from other trails located outside of the UDWSR 

corridor. The Forest Service was not arbitrary or capricious in 

reaching its conclusion that the cumulative impacts from increased 

recreational use are not significant. 

C. Additional NEPA Significance Factors 

Plaintiff maintains that three other NEPA "significance" 

factors, when considered collectively or in combination with the 

cumulative impacts of the Project, require the preparation of an 

EIS. First, plaintiff asserts that intensity factor number three, 

"unique characteristics of the geographic area," 40 C.F.R. §. 

1508.27 (b) ( 3), is implicated because the Project will increase 

recreational use within a congressionally desig_nated Wild and 

Scenic River corridor, the UDWSR, and the ecologically critical 

Ryan Ranch KEA. The Forest Service asserts that the UDWSR corridor 

is not implicated because no Project components are located within 

Page 28 - OPINION AND ORDER 

Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 28 of 36
the corridor, and the Forest Service determined that the Project 

would relieve congestion on the trails that exist within the UDWSR. 

The Forest Service further asserts that it analyzed the Project's 

impact to elk in the Ryan Ranch KEA and concluded that the small 

negative impact on elk habitat was not significant. For the reasons 

articulated above, the Court finds that intensity factor three does 

not mandate preparation of an EIS. 

Second, plaintiff alleges that intensity factor number five, 

"the degree to which the possible effects on the human environment 

are highly uncertain or involve unique or unknown risks," id. § 

1508.27 (b) (5), is implicated because the Forest Service lacks 

quantified information on current recreational use levels and 

estimated future use levels, in addition to detailed information on 

the efficacy of its proposed mitigation efforts. For the reasons 

articulated above, namely that the Forest Service properly 

accounted for effects of increased recreational use and the fact 

that the Project's components are outside of the UDWSR corridor, 

the Court finds intensity factor number five not present. 

Third, plaintiff alleges that intensity factor number ten, 

"whether the action threatens a violation of Federal, State or 

local law or requirements imposed for the protection of the 

environment," id. § 1508.27(b) (10), is implicated because the 

Project violates NFMA. The Forest Service argues that the Project 

is consistent with the Forest Plan and therefore does not violate 

NFMA. For the reasons se.t forth below, the Court finds no NFJVIA 

violation as alleged by plaintiff; therefore, this significance 

Page 29 - OPINION AND ORDER 

Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 29 of 36
factor does not weigh in favor of an EIS. 

Based on the reasons set forth above, the Court finds that the 

Forest Service adequately analyzed the Project's cumulative impacts 

to elk and deer in light of past and present projects also 

affecting the Project area, and the Forest Service properly 

addressed the four projects that plaintiff maintains should have 

been included in this Project's EA. Furthermore, relying on its 

agency expertise, the Forest Service determined that non-motorized 

trail milage could be used to analyze the cumulative impacts of 

non-motorized recreational use to elk and deer, rather than 

quantitative recreational use data that was non-existent and 

funding dependent. Finally, no other NEPA significance factors are 

implicated in this case that would mandate preparation of an EIS. 

In sum, the Forest Service articulated a rational connection 

between the facts found and its conclusion that no significant 

cumulative impacts will occur to elk and deer as a result of this 

Project, in light of the existing trail network and other projects 

in the Project area. Therefore, the Court finds that the Forest 

Service's decision to issue a DN and FONSI in lieu of preparing an 

EIS was not arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law. 

III. NFMA Claims 

Plaintiff brings NFMA challenges against-the Forest Service 

for: ( 1) failing to comply with the DNF Forest Plan management 

standard that instructs the Forest Service not to develop 

facilities that will encourage public use during the winter; and 

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Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 30 of 36
( 2) failing to comply with the 

Plan's provision designating 

recreational use. 

ODWSR Comprehensive Management 

annual capacity limits for 

The NFMA establishes both procedural and substantive 

requirements for the management of National Forest System lands. 16 

O.S.C. §§ 1600 et seq. Onder the NFMA, the Forest Service must 

develop and maintain a Land and Resource Management Plan consisting 

of broad, long-term objectives for each Forest System Onit. The 

management plan contains substantive requirements designed to 

manage forest resources by balancing the consideration of 

environmental and economic factors. Native Ecosystems Council v. 

Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012). The NFMA requires that 

site-specific projects be consistent with the governing forest 

plan. Id.; 16 U.S.C. § 1604(i). Alleged violations of the NFMA are 

reviewed under the "arbitrary and capricious" standard of review, 

according Forest Service management decisions a high degree of 

deference. 5 O.S.C. § 706(2) (A). 

A. Forest Plan Requirements 

In this case, the DNF lands at issue are managed by the Forest 

Service pursuant to the Deschutes National Forest Land and Resource 

Management Plan ("Forest Plan") as amended by the ODWSR 

Comprehensive Management Plan ("CMP"). When developing the Forest 

Plan, the Forest Service worked with ODFW to develop management 

objectives for elk within the DNF. Several measures were also 

developed for recreation management within the Ryan Ranch KEA. 

Plaintiff contends that the Forest Service violated the NFMA 

Page 31 - OPINION AND ORDER 

Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 31 of 36
by failing to comply with Forest Plan management standard WL-45 for 

the Ryan Ranch KEA which reads: "Facilities will not be developed 

nor activities promoted which would encourage public use during the 

winter." AR 12 97. Plaintiff argues that developing the Project 

facilities, i.e. the trailhead, parking lot, and new trails that 

will connect to existing trail systems, "encourages" public use 

during winter simply because they will be available for use. 

The Forest Service maintains that Forest Plan measure WL-45 

must be balanced with other management measures governing the Ryan 

Ranch KEA. Other competing measures include: "Public use will be 

encouraged on travel routes which will minimize conflicts with 

elk"; and "Public use will not be restricted within the Deschutes 

Wild and Scenic River during the calving season (May 1 to July 

31) ". AR 1297. The Forest Service further asserts that it has 

consciously placed Project trails in locations to minimize impacts 

to elk and will also take mitigation steps to discourage public use 

of trails during winter. 

Where a forest plan management directive is susceptible to 

more than one meaning, the Forest Service's interpretation and 

implementation of its own forest plan is accorded deference unless 

the interpretation is plainly erroneous. Siskiyou Reg' 1 Educ. 

Project v. U.S. Forest Serv., 565 F.3d 545, 555 (9th Cir. 2009); 

Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097-99 (9th 

Cir. 2003) (Forest Service's interpretation of forest plan was 

neither plainly erroneous nor inconsistent with the regulation and 

thus was entitled to substantial deference); Native Ecosystems 

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Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 32 of 36
Council v. Weldon, 697 F.3d at 1056; Native Ecosystems Council v. 

U.S. Forest Serv., 418 F.3d at 960 ("[a]gencies are entitled to 

deference to their interpretation of their own regulations, 

including Forest Plans"). 

Even if the Project indirectly encourages winter use in the 

Ryan Ranch KEA, Trail 1 and Trail 2 are within 150 feet of Cascade 

Lakes Highway and Forest Service Road 41, which are year-round, 

high-use roads leading to and from Mt. Bachelor Ski Resort. Based 

on data cited in the Terrestrial Wildlife Specialist Report, elk 

avoid roads at 1/4 to 1/2 miles; thus, elk would not be expected 

near Trail 1 or 2. Furthermore, the record shows that the Forest 

Service will undertake mitigation measures, including installing 

interpretive signs at the Project's Welcome Station trailhead that 

discourage winter use of trails. 10 Additionally, the Cascade Lakes 

Welcome Station parking lot, which has routes connecting to Trail 

1, will be gated during the winter months. AR 15230. The Forest 

Service also noted that trails within the Ryan Ranch KEA are not 

maintained for winter use. AR 14860. 

10 Plaintiff maintains that the Forest Service must support 

the assertion that interpretive signs are effective mitigation 

measures. The wildlife biologist evaluating the Project 

recommended installing interpretive materials to increase 

awareness of big game habitat needs in winter, which will help 

reduce winter use, and indicated that such winter conservation 

messages should be placed at the new Welcome Station trailhead. 

AR 14984, 15023. Plaintiff's challenge is not well taken given 

that he expressly wrote in his March 3, 2013 scoping comments to 

the Forest Service: "I request that no interpretive signs, 

kiosks, or other information be included in this project. 

Instead, I request that all available funds be allocated to 

trails and parking, which 'directly enhance the recreation 

experience of our residents and visitors.'" AR 12701. 

Page 33 - OPINION AND ORDER 

Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 33 of 36
The Forest Service is tasked with managing the DNF according 

to the principles of multiple use and sustained yield, which 

require the balancing of many competing uses for the land. See 16 

u.s.c. 

Service 

§§ 528-531; 16 U.S.C. § 1604(e) 

is entitled deference to 

Furthermore, the Forest 

its interpretation of 

"encouraging" winter use, and it· intends to take steps to comply 

with WL-45 in order to avoid disturbance of elk during winter 

months. The Court finds that the Forest Service did not act 

arbitrarily or capriciously in a plainly erroneous manner in its 

interpretation of Forest Plan management standard WL-45. 

B. Capacity Limitations in the UDWSR Corridor 

Plaintiff also contends that the Project violates NFMA because 

it does not comply with the annual non-commercial use capacity 

standards set forth in the UDWSR CMP. Specifically, plaintiff 

alleges that the Forest Service has not implemented the monitoring 

program referenced in the UDWSR CMP to obtain numerical noncommercial use data, and therefore the Forest Service cannot have 

reasonably determined that the Project will not cause noncommercial use levels to exceed the 44,000 annual use capacity 

limit in River Segment 4. Additionally, plaintiff maintains that 

the Forest Service failed to present data supporting the conclusion 

that the Project's new trails will relieve congestion on the 

Deschutes River Trail. 

As explain~d above, the Forest Service maintains that the noncommercial annual use capacity standard set forth in the UDWSR CMP 

is inapplicable to the Project, because the Project will not 

Page 34 - OPINION AND ORDER 

Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 34 of 36
designate or develop any sites within the UDWSR corridor. AR 14883-

84, 14903. The Forest Service emphasizes that plaintiff's argument 

rests on his own interpretation that the UDWSR CMP annual use 

capacity standard applies to developments outside of the UDWSR 

corridor or to developments that may cause recreationists to flow 

into the UDWSR corridor. 

The Court finds that the Forest Service reasonably interpreted 

the UDWSR CMP' s annual use capacity standard to apply to site 

designation and development within the UDWSR corridor. AR 5136, 

5167-68, 15225. Although the Project area boundary overlaps with 

some of the UDWSR corridor, none of the Project's actual components 

are located within the UDWSR. In fact, the Project's trailhead, 

parking lot, and much of Trail 1 and 2 are located in areas managed 

for "Intensive Recreation," and Trail 3 and 4 are located even 

farther away from the UDWSR corridor. AR 14771. Additionally, the 

Forest Service articulated that the information it evaluated, 

including letters received during the comment process, support its 

determination that the Project will likely reduce congestion on the 

Deschutes River Trail, located within the UDWSR corridor. AR 14808-

11, 14926-27, 12713-14, 12747, 12758. The Court finds the Forest 

Service was not arbitrary or capricious in determining that the 

non-commercial annual use capacity limit is not invoked by the 

Project. 

CONCLUSION 

For the reasons set forth above, plaintiff's motion for 

summary judgment (doc. 13) is DENIED, and the Forest Service's 

Page 35 - OPINION AND ORDER 

Case 6:14-cv-01511-AA Document 21 Filed 09/15/15 Page 35 of 36
cross motion for summary judgment (doc. 16) is GRANTED. This case 

is dismissed. The parties' request for oral argument is denied as 

unnecessary. 

IT IS SO ORDERED. ·~A~ 

Dated this ;, ~~~of September, 2015. 

Ann Aiken 

United States District Judge 

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