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1 Case 3:13-cv EJL Document 39 Filed 10/03/14 Page 1 of 4 SAM HIRSCH Acting Assistant Attorney General Environment & Natural Resources Division PAUL D. BARKER, JR., DC No Senior Attorney TYLER L. BURGESS, NC No Trial Attorney United States Department of Justice Environment & Natural Resources Division Natural Resources Section PO Box 7611 Washington, DC Phone: ( paul.barker@usdoj.gov tyler.burgess@usdoj.gov WENDY J. OLSON, ID No United States Attorney JOSHUA D. HURWIT, NY No Assistant United States Attorney United States Attorney s Office, District of Idaho 800 Park Boulevard, Suite 600 Boise, ID Phone: ( joshua.hurwit@usdoj.gov Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO CENTRAL DIVISION CLEARWATER COUNTY, IDAHO and IDAHO COUNTY, IDAHO, Plaintiffs, v. UNITED STATES FOREST SERVICE, UNITED STATES FOREST SERVICE NORTHERN REGION, CLEARWATER NATIONAL FOREST, FAYE KRUGER, in her official capacity as Regional Forester for the Northern Region, and RICK BRAZELL, in his official capacity as Forest Supervisor for the Clearwater National Forest, Federal Defendants. Case No. 3:13-CV EJL FEDERAL DEFENDANTS NOTICE OF FILING OF MOTION FOR ENTRY OF STIPULATED SETTLEMENT AND PROPOSED ORDER OF DISMISSAL IN IDAHO STATE SNOWMOBILE ASSOCIATION V. UNITED STATES FOREST SERVICE, 12-cv- 447-BLW FED. DEFS OPP. TO MOTION FOR LIMITED MOD. OF STAY 1 Clearwater County et al. v. U.S. Forest Service et al., No: 3:13-cv EJL

2 Case 3:13-cv EJL Document 39 Filed 10/03/14 Page 2 of 4 NOTICE Federal Defendants, by their undersigned counsel, hereby give notice to the Court and parties that Federal Defendants have filed a Motion for Entry of Stipulated Settlement and Proposed Order of Dismissal in another case in this Court, Idaho State Snowmobile Association v. United States Forest Service ( ISSA, 3:12-CV BLW, which, like this case, also challenges the United States Forest Service s approval of the Clearwater National Forest Travel Management Plan. See Exhibit 1, Federal Defendants Motion for Entry of Stipulated Settlement and Proposed Order of Dismissal, Idaho State Snowmobile Association v. United States Forest Service, 3:12-CV BLW, ECF No. 48 (filed October 3, The Stipulated Settlement in ISSA between the Plaintiffs and Federal Defendants 1 provides for a limited vacatur and remand to the Forest Service of the portion of the Clearwater National Forest Travel Management Plan that pertains to the management of over snow and motorized vehicle access in Recommended Wilderness Areas so the Forest Service may issue a new decision with respect to that limited portion of the Travel Plan. Respectfully submitted this 3rd day of October, SAM HIRSCH Acting Assistant Attorney General Environment & Natural Resources Division /s/ Paul D. Barker, Jr. PAUL D. BARKER, JR. (DC No Senior Attorney TYLER L. BURGESS (NC No Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section 1 Intervenor-Defendants in ISSA have indicated they intend to oppose the Motion for Entry of Stipulated Settlement and Proposed Order of Dismissal. FED. DEFS OPP. TO MOTION FOR LIMITED MOD. OF STAY 2 Clearwater County et al. v. U.S. Forest Service et al., No: 3:13-cv EJL

3 Case 3:13-cv EJL Document 39 Filed 10/03/14 Page 3 of 4 PO Box 7611 Washington, DC Phone: ( (Barker Phone: ( (Burgess Fax: ( paul.barker@usdoj.gov tyler.burgess@usdoj.gov WENDY J. OLSON (ID No United States Attorney JOSHUA D. HURWIT (NY No Assistant United States Attorney District of Idaho 800 East Park Boulevard, Suite 600 Boise, ID Phone: ( joshua.hurwit@usdoj.gov Attorneys for Federal Defendants FED. DEFS OPP. TO MOTION FOR LIMITED MOD. OF STAY 3 Clearwater County et al. v. U.S. Forest Service et al., No: 3:13-cv EJL

4 Case 3:13-cv EJL Document 39 Filed 10/03/14 Page 4 of 4 CERTIFICATE OF SERVICE I hereby certify that on October 3, 2014, a copy of this foregoing document was served via the CM/ECF system on the following: Eric Clayne Tyler Clearwater County Prosecuting Attorney s Office PO Box 2627 Orofino, ID Phone: ( ctyler@clearwatercounty.org Kirk MacGregor Idaho County Prosecuting Attorney PO Box 463 Grangeville, ID Phone: ( kmacgregor@connectwireless.us Attorneys for Plaintiffs Matthew R. Baca (pro hac vice Earthjustice 705 Second Avenue, Suite 203 Seattle, WA Phone: ( mbaca@earthjustice.org Suzanne M. Fegelein Ford Elsaesser Elsaesser Jarzabek Anderson Marks Elliott & MacDonald, Chtd 102 South Euclid Avenue, Suite 307 Sandpoint, ID Phone: ( sue@ejame.com ford@ejame.com Attorneys for Proposed Defendant-Intervenors /s/ Paul D. Barker, Jr. Paul D. Barker, Jr. Attorney for Federal Defendants FED. DEFS OPP. TO MOTION FOR LIMITED MOD. OF STAY 4 Clearwater County et al. v. U.S. Forest Service et al., No: 3:13-cv EJL

5 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 1 of 18 SAM HIRSCH ACTING ASSISTANT ATTORNEY GENERAL PAUL D. BARKER, JR. SENIOR ATTORNEY TYLER L. BURGESS TRIAL ATTORNEY U.S. DEPARTMENT OF JUSTICE ENVIRONMENT & NATURAL RESOURCES DIVISION NATURAL RESOURCES SECTION P.O. Box 7611 Washington, DC ( (Barker ( (Burgess Paul.Barker@usdoj.gov Tyler.Burgess@usdoj.gov WENDY J. OLSON, IDAHO STATE BAR NO UNITED STATES ATTORNEY JOSHUA D. HURWIT, NEW YORK STATE BAR NO ASSISTANT UNITED STATES ATTORNEY UNITED STATES ATTORNEY S OFFICE, DISTRICT OF IDAHO 800 Park Boulevard, Suite 600 Boise, ID ( joshua.hurwit@usdoj.gov Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO IDAHO STATE SNOWMOBILE ASSOCIATION, BLUERIBBON COALITION, Plaintiffs, v. THE UNITED STATES FOREST Case No.: 3:12-CV BLW MOTION FOR ENTRY OF STIPULATED SETTLEMENT AND PROPOSED ORDER OF DISMISSAL

6 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 2 of 18 SERVICE, THE UNITED STATES FOREST SERVICE NORTHERN REGION, THE CLEARWATER NATIONAL FOREST, FAYE KRUEGER, in her official capacity as Regional Forester for the Northern Region, and RICK BRAZELL, in his official capacity as Forest Supervisor for the Clearwater National Forest, Defendants, and GREAT BURN STUDY GROUP, IDAHO CONSERVATION LEAGUE, and THE WILDERNESS SOCIETY, Intervenor-Defendants. snow and motorized vehicle access in Recommended Wilderness Areas ( RWAs Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 2 Introduction Defendants U.S. Forest Service ( Forest Service, the United States Forest Service Northern Region, the Clearwater National Forest, Faye Krueger, in her official capacity as Regional Forester for the Northern Region, and Rick Brazell, in his official capacity as Forest Supervisor for the Clearwater National Forest (collectively, the Federal Defendants, hereby move the Court for entry of the accompanying Stipulated Settlement and Proposed Order of Dismissal, Exhibit 1, whereby the Plaintiffs and Federal Defendants agree to a limited vacatur and remand to the Forest Service of the portion of the Clearwater National Forest Travel Management Plan ( Travel Plan that pertains to the management of over

7 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 3 of 18 so the Forest Service may issue a new decision with respect to that limited portion of the Travel Plan. Plaintiffs, Idaho State Snowmobile Association and BlueRibbon Coalition ( Plaintiffs, consent to the motion. Counsel for Intervenor-Defendants has indicated Intervenors will object to the proposed settlement and will file their objections within 21 days in accordance with Local Rule 7.1(c regarding opposition to a motion. Background Facts Plaintiffs have challenged the Travel Plan alleging violations of the Wilderness Act, the National Forest Management Act ( NFMA, the National Environmental Policy Act ( NEPA, and the Administrative Procedure Act ( APA in the Forest Service s approval of the Travel Plan as it pertains to the management of over snow and motorized vehicle access in RWAs on the Clearwater National Forest (the Forest. Compl. ECF No. 1. Plaintiffs fivecount complaint alleges that the Forest Service has: 1 violated the Wilderness Act in the Travel Plan by establishing management direction for RWAs as if they are Congressionally-designated wilderness without authority to do so, Compl ; 2 violated NFMA by establishing management direction for RWAs that is not authorized by law or supported by substantial evidence, Id ; 3 violated NFMA by unlawfully restricting uses in RWAs by reference to what is permitted in Congressionally-designated wilderness areas and arbitrarily and Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 3

8 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 4 of 18 capriciously declining to consider a Forest Plan amendment that would permit such uses to continue in RWAs, Id ; 4 violated NFMA by approving management direction for RWAs in the Clearwater Travel Plan Record of Decision ( ROD that was based on a regional policy that changed existing Forest Service management direction for RWAs on the Forest without following appropriate public notice and comment procedures, Id ; and 5 violated NEPA by failing to analyze a reasonable alternative, Id Federal Defendants answered and denied any violations of the law. ECF No. 5. Federal Defendants prepared and lodged the administrative record on May 31, ECF No. 22. Plaintiffs filed a Motion to Complete and Supplement the Administrative Record seeking discovery on whether the Northern Region of the Forest Service had developed an RWA policy that was communicated to the Forest leadership and improperly predetermined the outcome of the Travel Plan decision. ECF No. 25, 26. Federal Defendants opposed the motion. ECF No. 28. The Court granted the Motion in part, ECF No. 33, and permitted Plaintiffs to propose discovery limited to the issue of whether a Northern Region RWA Policy exists and was considered by the Forest Service in drafting the 2012 Clearwater National Forest Travel Plan. ECF No. 33 at 6. Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 4

9 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 5 of 18 The administrative record lodged in this case reflects that over time the Northern Region of the Forest Service has distributed various versions of a document entitled Access and Travel Management, Consistency in Land and Resource Management Plans (the Guidance that encouraged the forests in the Northern Region to move toward more consistent management responses for various issues, including management of over snow and motorized access in RWAs. Exhibit 2, AR (Guidance. 1 However, in the course of preparing to respond to Plaintiffs Proposed Discovery Plan (ECF No. 34, new information has come to the Forest Service s attention that confusion over the role and nature of the Guidance existed during the planning process for the Travel Plan both within and outside the Forest Service. Exhibit 3, Krueger Declaration 6. Although the Northern Region has described and treated the Guidance as nonbinding, a misperception has developed both within the Forest Service and among stakeholders regarding what role the regional Guidance was intended to serve with respect to travel management in RWAs. Id. In light of this new information, and after arms-length negotiations with Plaintiffs in this case in an attempt to reach an appropriate resolution regarding Plaintiffs claims and conserve the parties own and the Court s resources, the Forest Service has concluded that a limited vacatur and remand of the portion of 1 Federal Defendant cites to the administrative record lodged with the Court on May 31, 2013 (ECF No. 22 as AR followed by the applicable Bates number. Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 5

10 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 6 of 18 the Travel Plan related to management of over snow and motorized vehicle access in RWAs is appropriate, so that the Forest Service can make a new decision. Id. 7. Accordingly, Federal Defendants move the Court to enter the Stipulated Settlement and Proposed Order. Discussion The Stipulated Settlement and Proposed Order provides for a limited remand and vacatur of only that portion of the Travel Plan pertaining to management of over snow and motorized vehicle access in RWAs so that the Forest Service may make a new decision consistent with applicable direction in the 1987 Clearwater Forest Plan and the Forest Service Manual section (1. 2 Krueger Decl. 7. In light of the circumstances presented here, where stakeholders, the public, and Forest Service employees were confused about the role of the Guidance in the Travel Plan decision process regarding RWAs, the appropriate response is for the Forest Service to make a new decision after clearing up that confusion. That is what the Agency proposes to do here, and entering the Stipulated Settlement and Proposed Order is well within the Court s discretion. Conservation Northwest v. 2 Section (1 of the Forest Service Manual provides, Any inventoried roadless area recommended for wilderness or designated wilderness study is not available for any use or activity that may reduce the wilderness potential of an area. Activities currently permitted may continue, pending designation, if the activities do not compromise wilderness values of the area. See AR The 1987 Clearwater Forest Plan provides direction to manage each recommended wilderness to protect its wilderness character, and, for recreation, directs the Forest Service to manage all uses to maintain wilderness qualities and retain semiprimitive settings. See AR Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 6

11 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 7 of 18 Sherman, 715 F.3d 1181, 1185 (9th Cir ( A consent decree is a hybrid; it is both a settlement and an injunction... [that] typically represents an amalgam of delicate balancing, gross approximations, and rough justice.... ; Turtle Island Restoration Network v. U.S. Dep t of Commerce, 672 F.3d 1160, 1165 (9th Cir ( A district court may approve a consent decree when the decree is fair, reasonable and equitable and does not violate the law or public policy.. A district court s decision to approve a consent decree is reviewed for abuse of discretion. Turtle Island, 672 F.3d at The district court in Hawaii approved a settlement under analogous circumstances. Turtle Island Restoration Network v. Dep t of Commerce, 834 F.Supp.2d 1004, (D. Haw ( Plaintiffs and Federal Defendants filed a Joint Motion to Enter Stipulated Injunction as an Order of the Court... which in essence is a proposed consent decree that would result in dismissal of all of Plaintiffs claims with prejudice.. In approving that settlement, which included a partial vacatur and remand of a biological opinion and fishery rule, the district court said that if the settlement comes within the general scope of the case made by the pleadings, furthers the objective upon which the law is based, and does not violate the statute upon which the complaint was based, the agreement should be entered by the court. Id. (internal quotes omitted. The Ninth Circuit affirmed the district court against a challenge that it had abused its discretion in approving the Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 7

12 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 8 of 18 settlement. Turtle Island Restoration Network v. U.S. Dep t of Commerce, 672 F.3d 1160, 1165 (9th Cir The Stipulated Settlement and Proposed Order submitted herewith is narrowly circumscribed to address the issues raised in Plaintiffs complaint, furthers the objective of NFMA and NEPA to ensure fair and open public participation, does not violate either of those statutes, and is fair, reasonable, and in the public interest. The Court retains jurisdiction for the purposes of enforcing the settlement. Ex. 1. Accordingly, it is the appropriate path forward under the circumstances presented here. 1. Courts in the Ninth Circuit Strongly Favor Settlement. It is well-settled that the court should enter a consent decree if it determines that it is fair, reasonable and equitable and does not violate the law or public policy. Turtle Island Restoration Network v. U.S. Dep t of Commerce, 834 F. Supp. 2d 1004, 1008 (D. Haw (quoting Sierra Club v. Elec. Controls Design, Inc., 909 F. 2d 1350, 1355 (9th Cir Though courts do not rubber stamp proposed stipulated settlements, the court s discretion should be exercised in favor of the strong policy favoring voluntary settlement of litigation. Id. at 1009 (citing Ahern v. Cent. Pac. Freight Lines, 846 F. 2d 47, 48 (9th Cir (Noting that [t]he Ninth Circuit is firmly committed to the rule that the law favors Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 8

13 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 9 of 18 and encourages compromise settlements. (Internal citations and quotations omitted. 2. The Limited Remand Proposed in the Stipulated Settlement is Within the Court s Discretion. A federal agency may request remand in order to reconsider its initial action. California Cmtys. Against Toxics v. U.S. E.P.A., 688 F.3d 989, 992 (9th Cir (citing SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed.Cir Indeed, courts only refuse voluntarily requested remand when the agency's request is frivolous or made in bad faith. Id. Courts have long recognized that [v]oluntary remand is consistent with the principle that [a]dministrative agencies have an inherent authority to reconsider their own decisions, since the power to decide in the first instance carries with it the power to reconsider. Natural Resources Defense Council v. United States Dep t of the Interior ( NRDC, 275 F. Supp. 2d 1136, 1141 (C.D. Cal (quoting Trujillo v. General Electric Co., 621 F.2d 1084, 1086 (10th Cir.1980; see also Lute v. Singer Co., 678 F.2d 844, 846 (9th Cir.1982 (discussing Trujillo. Voluntary remand is also consistent with efficient use of judicial resources by allowing the agency to address concerns in its decision making process or its decision without the need for judicial intervention. NRDC, 275 F. Supp. 2d at 1141; see, Ethyl Corp. v. Browner, 989 F.2d 522, 524 (D.C.Cir.1993; see also Sierra Club v. Van Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 9

14 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 10 of 18 Antwerp, 560 F. Supp.2d 21, 23 (D.D.C ( [The D.C.] Circuit prefers to allow agencies to cure their own mistakes rather than wasting the courts and the parties resources reviewing a record that both sides acknowledge to be incorrect or incomplete.. Nor is a federal agency required to confess error to seek remand to reconsider its prior decision. Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 215 (4th Cir. 2009; Ren v. Gonzales, 440 F.3d 446, 448 (7th Cir So long as the agency has legitimate and substantial concerns about the integrity of the decision at issue, remand is generally appropriate. SKF USA Inc., 254 F.3d at 1029; see also Frito-Lay, Inc. v. U.S. Dep t of Labor, 3:12-cv-1747-B-BN, 2014 WL (N.D. Tex., Feb. 11, 2014; Ctr. for Native Ecosystems v. Salazar, 795 F. Supp. 2d 1236, 1239 (D. Colo. 2011; Sierra Club, 560 F. Supp.2d at 23. In such circumstances, failure to grant a remand in the absence of strong countervailing reasons has been found to be an abuse of discretion. See Citizens Against the Pellissippi Parkway Extension v. Mineta, 375 F.3d 412, (6th Cir The Limited Vacatur Proposed in the Stipulated Settlement is Within the Court s Discretion. The Court not only has discretion to approve the limited remand to which the parties have agreed, the Court may approve the limited vacatur the parties seek Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 10

15 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 11 of 18 as well. Nat l Ski Areas Assoc., Inc. v. U.S. Forest Service, 910 F. Supp. 2d 1269, (D. Colo ( Vacation of an agency action without an express determination on the merits is well within the bounds of traditional equity jurisdiction. (citing NRDC, 275 F. Supp. 2d at 1144; Ctr. for Native Ecosystems, 795 F. Supp. 2d at In deciding whether vacatur is appropriate, the courts consider the seriousness of the alleged error and the potential disruptive consequences of an interim change. California Cmtys. Against Toxics, 688 F.3d at 992 ( Whether agency action should be vacated depends on how serious the agency's errors are and the disruptive consequences of an interim change that may itself be changed. (quoting Allied Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, (D.C.Cir.1993 (internal quotation marks omitted; see also Nat l Ski Areas Assoc, 910 F. Supp. 2d at 1286; Ctr. for Native Ecosystems, 795 F. Supp. 2d at 1242; NRDC, 275 F. Supp. 2d at ( Although in granting the defendant s motion for voluntary remand the Court does not actually rule on the merits of defects... the same equitable analysis for vacatur of the rules during remand should apply here.. The limited remand and vacatur requested here are neither frivolous nor made in bad faith, and would not be unduly disruptive. They are supported by evidence demonstrating the Forest Service s legitimate concerns regarding Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 11

16 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 12 of 18 Plaintiffs allegations, including whether the decision-making process was compromised by confusion over the role of the Guidance. Plaintiffs have alleged that the Clearwater Travel Plan decision was impacted by the improper influence of a Northern Region policy that, in Plaintiffs view, required the forests in the Northern Region to manage RWAs as if they were Congressionally-designated wilderness. While the Forest Service does not concede that it violated the law, the Agency has learned facts that lead it to believe there has been confusion regarding the role of the Guidance in access management for RWAs not only among stakeholders, such as Plaintiffs, but also among Forest Service officials and other members of the public. Krueger Decl. 6. Indeed, the Forest Service learned that there was also a misunderstanding among stakeholders regarding the role of the Guidance in the course of considering public comments and objections to proposed forest plan revisions regarding RWAs for the Kootenai National Forest and the Idaho Panhandle National Forest. Krueger Decl. 6. In light of these facts, and to preserve the integrity of the public participation process by which the Forest Service develops and approves the Travel Plan, as well as the public s perception of that process, the Forest Service seeks a limited vacatur and remand to issue a new decision regarding management of over snow and motorized vehicle access for RWAs for the Forest s Travel Plan. Krueger Decl. 7. The Stipulated Settlement and Proposed Order provides for a limited Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 12

17 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 13 of 18 vacatur and remand of the portion of the Clearwater Travel Plan pertaining to management of over snow and motorized vehicle access in RWAs. Pursuant to the settlement, the Forest Service will make best efforts to issue a new decision before the start of the next snowmobile season (which generally starts about December 15. See Settlement Agreement 3. Until a new decision is issued, the management of over snow and motorized vehicle access in RWAs would revert to the management direction in the 1987 Clearwater Forest Plan, the Forest Service Manual, and applicable statutory and case law (i.e. the direction in place prior to the adoption of the Clearwater Travel Plan. Id. 2. The remainder of the Travel Plan will remain in place. During the remand and following vacatur, motorized access may occur in some areas of the RWAs pursuant to prior management direction; however, the Travel Plan EIS demonstrates that summer motorized use of the RWAs is limited and environmental impacts from such use have not previously been significant. AR (Travel Plan FEIS pp to Therefore, summer-time motorized access in RWAs, even if it occurs, is not expected to significantly adversely impact the RWAs. Moreover, while winter motorized access, in the form of snowmobiles, would likely reduce the primitive feeling of an RWA and the sense of naturalness and solitude that such areas can provide, AR 2641 (FEIS at 3-135, such impacts would be transient and would cease when the snowmobile Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 13

18 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 14 of 18 use ceased. Furthermore, the Plaintiffs and Federal Defendants have agreed that the Forest Service will use its best efforts to issue a new decision prior to the next snow mobile season, thereby potentially limiting the period of remand to just a few months. See Settlement Agreement 3-5. This case is similar to Turtle Island Restoration Network v. Department of Commerce, where the district court approved a settlement that included a partial vacatur and remand of a biological opinion and fishery rule, and the Ninth Circuit affirmed that decision. Turtle Island Restoration Network v. U.S. Dep t of Commerce, 672 F.3d at 1165; see also Conservation Northwest, 715 F.3d at 1185 (noting that the Turtle Island settlement merely temporarily restore[d] the status quo ante pending new agency action and [did] not promulgate a new substantive rule. As the court did in Turtle Island, the Court should exercise its discretion here in favor of settlement, and approve the Plaintiffs and Federal Defendants Stipulated Settlement and Proposed Order of Dismissal. 4. The Stipulated Settlement is fair and reasonable, appropriately limited in scope, and in the public interest. As noted above, the Court should approve the Stipulated Settlement if it is fair, reasonable and equitable and does not violate the law or public policy. Turtle Island, 834 F. Supp. 2d at The Stipulated Settlement proposed here is appropriate for at least four reasons. Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 14

19 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 15 of 18 First, it resolves all of the legal issues between Plaintiffs and Federal Defendants, brings this litigation to an end without further Court involvement, and preserves the parties and the Court s resources. Second, the limited vacatur and remand to which Plaintiffs and Federal Defendants have agreed was negotiated at arms-length, targets specifically the Plaintiffs concerns about the RWA portion of the Travel Plan, addresses the concerns that the Forest Service itself has about the decision-making process and the litigation risks it faces with respect to that portion of the Travel Plan, and leaves the remainder of the Travel Plan in place. Third, the Stipulated Settlement is consistent with NFMA and NEPA and recognizes the importance of the integrity of the decision-making and publicparticipation process in forest travel planning. It permits the Forest Service to make a new decision regarding the management of over snow and motorized vehicle access in RWAs on the Forest, but does not determine the outcome of the new decision-making process or establish what the decision should be. Ex. 1, Settlement Agreement and Release 13. Indeed, the Stipulated Settlement acknowledges that the decision could be the same or similar to the old decision by providing that any challenge that Plaintiffs have to the new decision must be brought in a new lawsuit. Id. Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 15

20 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 16 of 18 Fourth, the Stipulated Settlement provides that the Forest Service will make best efforts to issue a new decision reasonably quickly, if possible before the next snowmobile season, recognizing that Plaintiffs, Intervenors, and other stakeholders, as well as the Forest Service, have an interest in the agency promptly issuing a new decision. Ex. 1, Settlement Agreement and Release 3. Furthermore, the Forest Service has committed to take appropriate steps to make the public aware of the applicable management direction, Ex. 1, Settlement Agreement and Release 4, and to provide regular status reports to the Court on its progress toward a new decision. Ex. 1, Settlement Agreement and Release 5 For all these reasons, the Stipulated Settlement is an appropriate, fair, and reasonable resolution of Plaintiffs claims, and does not violate the law or public policy. Moreover, under the circumstances presented here, the Stipulated Settlement is in the public interest. The Court should approve it. Conclusion Accordingly, Federal Defendants respectfully request that the Court approve the Stipulated Settlement and Proposed Order, which provides for vacatur of the portion of the Clearwater Travel Plan related to management of over snow and motorized vehicle access in RWAs and remand that portion of the Travel Plan back to the Forest Service to issue a new decision. Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 16

21 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 17 of 18 Dated: October 3, 2014 Respectfully submitted, WENDY J. OLSON United States Attorney JOSHUA D. HURWIT Assistant United States Attorney United States Attorney s Office District of Idaho 800 Park Boulevard, Suite 600 Boise, ID ( joshua.hurwit@usdoj.gov SAM HIRSCH Acting Assistant Attorney General By: /s/ Paul D. Barker, Jr. PAUL D. BARKER, JR. (DC No Senior Attorney TYLER L. BURGESS (NC No Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section PO Box 7611 Washington, DC Phone: ( (Barker Phone: ( (Burgess Fax: ( paul.barker@usdoj.gov tyler.burgess@usdoj.gov Attorneys for Defendants Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 17

22 Case 3:13-cv EJL 3:12-cv BLW Document Filed 10/03/14 Page 18 of 18 CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of October, 2014, a copy of this foregoing document was filed electronically through the CM/ESF system, which sent a Notice of Electronic Filing to the following person(s noted below: Matthew R. Baca mbaca@earthjustice.org, Joshua David Hurwit joshua.hurwit@usdoj.gov, Danielle.Narkin@usdoj.gov Paul A Turcke pat@msbtlaw.com, ems@msbtlaw.com, kmd@msbtlaw.com, ntt@msbtlaw.com Paul David Barker paul.barker@usdoj.gov, efile_nrs.enrd@usdoj.gov Todd D True ttrue@earthjustice.org, chamborg@earthjustice.org Suzanne M. Fegelein sue@ejame.com J. Ford Elsaesser ford@ejame.com Tyler L Burgess tyler.burgess@usdoj.gov, /s/ Paul D. Barker, Jr. Paul D. Barker, Jr. Federal Defendants Motion in Support of Stipulation of Settlement and Proposed Order - 18

23 Case 3:12-cv BLW 3:13-cv EJL Document Filed 10/03/14 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO IDAHO STATE SNOWMOBILE ASSOCIATION, et al., Plaintiffs, v. THE UNITED STATES FOREST SERVICE, et al., Defendants, and GREAT BURN STUDY GROUP, et al., Intervenor-Defendants. Case No.: 3:12-CV BLW STIPULATED SETTLEMENT AND PROPOSED ORDER OF DISMISSAL To effectuate the Settlement Agreement and Release entered into by the Plaintiffs and Federal Defendants in the above-captioned case, attached as Exhibit 1, the Plaintiffs and Federal Defendants stipulate to the vacatur of the portion of the Clearwater National Forest Travel Management Plan ( Travel Plan as it relates to motorized and over snow access management for Recommended Wilderness Areas on the Clearwater National Forest and to remand of that portion of the Travel Plan back to the United States Forest Service for a new decision and to the dismissal of this action with prejudice pursuant to Fed. R. Civ. P. 41(a. The Parties agree that this Court shall retain jurisdiction of this matter for the limited Stipulated Settlement And Proposed Order of Dismissal

24 Case 3:12-cv BLW 3:13-cv EJL Document Filed 10/03/14 Page 2 of 12 purpose of determining compliance with the attached Settlement Agreement and Release. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994. Notwithstanding the preceding sentence, the Parties agree that any challenge by Plaintiffs to a new decision issued by the Forest Service regarding over snow and motorized access management in Recommended Wilderness Areas on the Clearwater National Forest shall be brought in a newly filed complaint rather than as a continuation of this action. IT IS SO ORDERED. The Stipulated Settlement is approved. The Court retains jurisdiction over this matter for the limited purpose of determining compliance with the attached Settlement Agreement and Release, and this matter is hereby dismissed with prejudice. Dated: Stipulated Settlement And Proposed Order of Dismissal - 2

25 Case 3:12-cv BLW 3:13-cv EJL Document Filed 10/03/14 Page 3 of 12 Settlement Agreement and Release Plaintiffs Idaho State Snowmobile Association and B1ueRibbon Coalition, and Defendants U.S. Forest Service ("Forest Service", the United States Forest Service Northern Region, the Clearwater National Forest, Fa}~e Krueger, in her official ca~aacity as Regional Forester for the Northern Region, and Rick k3raze1l, in his official capacity as Forest Supervisor for the Clearwater National Forest (collectively, the "Federal Defendants", by and through their undersigned counsel, state and agree as follows: WHEI~,EAS, on August 29, 2p 12, Plaintiffs filed a lawsuit entitled Idaho State Snowmobile Association, et al. v. United States Forest Service, et al., Civil N~, 3:12-CV BLW (I. Idaho (the "Lawsuit", against the Federal Defendants alleging violations of the Wilderness Act, the National Forest Management Act ("NFMA", the National Environmental Policy Act ("NEPA", and the Administrative Procedure Act ("APA" in the Forest Service's approval Af the Clearwater National Forest Travel Management Plan {tlae "Travel Plan" as it pertains to the management in Recommended Wilderness Areas ("RWAs" on the Clearwater National Forest (the "Forest"; WHEREAS, Plaintiffs' Complaint (ECF No. 1 alleges, among other claims, that the alternative selected in the Clearwater Travel Plan Record of Decision {"ROD" was made to effectuate a Northern Region "policy" regarding management of RWAs that "creates rights, imposes obligations, or effectuates a change in existing law" without public notice and comment, ECF No. 1 '~( 141, 147; WHEREAS, though rederal Defendants dispute Plaintiffs' claims, it has come to the Forest Service's attention that regional issuance of documents described as guidance Settlement Agreement - 1

26 Case 3:12-cv BLW 3:13-cv EJL Document Filed 10/03/14 Page 4 of 12 for forest planning, including planning for RWA management, has led to confusion and misperception regarding the role that such documents serve with respect to Forest Service planning, including motorized travel planning; WHEREAS, Plaintiffs and Federal Defendants have concluded that it is in their mutual interest to avoid further litigation, conserve their own and judicial resources, and agree to a limited remand and vacatur of the Travel Plan for the Forest Service to make a new Travel Plan decision regarding management of motorized and over snow access to RWAs; and WHEREAS, Plaintiffs and Federal Defendants believe the settlement set forth below is fair and reasonable and in the public interest; NQW, THEREFORE, Plaintiffs and Federal Defendants agree and stipulate as follows: The Forest Service agrees to a voluntary limited vacatur and remand of the Clearwater Travel Plan with respect to motorized' and over snow access management for RWAs on the Clearwater National Forest so that the Forest Service may rriake a new decision with respect to that portion of the Clearwater Travel Plan, and to file jointly with Plaintiffs a Stipulated Settlement and Proposed Order of Dismissal to effectuate the limited vacatur and remand. The Forest Service also will file a motion in support of the Stipulated Settlement and Proposed Order of Dismissal (the "Motion". Plaintiffs agree ~ Plaintiffs and Federal Defendants agree that mechanized vehicle access (e.g. bicycles to RWAs would also be subject to the limited vacatur and remand, as well as the new decision process proposed herein. Settlement Agreement - 2

27 Case 3:12-cv BLW 3:13-cv EJL Document Filed 10/03/14 Page 5 of 12 to file a separate statement supporting the Motion. Plaintiffs and. Federal Defendants agree that the remainder of the Tra~~el Plan should remain in place and is not subject to the Motion. 2. Plaintiffs and the Forest Service agree that if and when the Court approves the Stipulated Settlement and Proposed Order of Dismissal, and until the Forest Service makes a new decision, management of motorized and over snow access for RWAs in the Clearwater National Forest will revert to previous management direction applying the provisions of the 1987 Clearwater Forest Plan and applicable direction in the Forest Service Manual. For the purposes of this Settlement Agreement, this is the "interim management direction." 3. If the Court approves the Stipulated Settlement and Proposed Order of Dismissal, the Forest Service will promptly undertake the effort to consider and prepare a new decision as described above, and will make best efforts t~ carriplete its analysis and issue a new decision regarding management of motorized and over snow access for RWAs before the beginning of the next snowmobile season (which is expected to begin approximately in mid-december If Federal Defendants do not male a new decision that can he implemented prior to the start of the next snowmobile season, Federal Defendants will take appropriate steps to make the public aware of the interim management direction that may include producing a new Motor Vehicle Use Map or Forest Visitor Map, posting the interim management direction on the Forest website and at its offices, or other similar steps. Plaintiffs and Federal Defendants acknowledge that other stakeholders or interested. Settlement Agreement - 3

28 Case 3:12-cv BLW 3:13-cv EJL Document Filed 10/03/14 Page 6 of 12 members of the public may choose to seek judicial relief from the interim management direction referenced in paragraph 2, above. Nothing in this Settlement Agreement and Release ("Settlement Agreement" constrains the Forest Service's exercise of its discretion in responding to any such litigation efforts by any person or entity seeking judicial relief in such circumstances. 5. Plaintiffs and Federal Defendants agree that following remand the Forest Service will submit a status report to the Court on or before November 1, 2014, reporting on the status of the Forest Service's effort to issue a new Travel Plan decision for motorized and over snow access to RWAs in the Clearwater National Forest. In the event that the Forest Service does not issue a new decision that can be implemented by December 15, 2014, the Forest Service ~~ill submit a second status report on or before December 15, 2014, reporting an tie status of its efforts to issue a new decision and its best projection of the issuance and implementation dates for the Forest Service's new decision. Thereafter, it will file a status report with the Court every 30 days until a new decision is published. 6. Following execution of this Settlement Agreement by Plaintiffs and Federal Defendants, Plaintiffs and Federal Defendants will file a Stipulated Settlement and Proposed Order of Dismissal in the form attached to this Settlement Agreement which provides that the Court shall retain jurisdiction as specified in Paragraph 8. See Kokkonen v. Guardian Life Ins. Co. ofam., 511 U.S. 375 (1994. Federal Defendants will also file the Motion in support referenced in paragraph 1, above. 7. The provisions of paragraphs 1, 3, 5, 6, 9, and 10 of this Settlement Agreement each shall terminate upon its completion. Settlement Agreement - 4

29 Case 3:12-cv BLW 3:13-cv EJL Document Filed 10/03/14 Page 7 of 12 $. Plaintiffs and Federal Defendants agree that the Court should. retain jurisdiction over this case solely to enforce the terms of this Settlement Agreement. In the event that the Forest Service seeks to modify the terms of this Settlement Agreement, it shall provide Plaintiffs with notice of that request. In the event of a dispute arising out of or relating to this Settlement Agreement, or in the event that Plaintiffs or Federal Defendants believe that any party to the Settlement Agreement has failed to comply with any term or condition, the party raising the dispute or seeking enforcement shall provide the other party with notice of the claim. Plaintiffs and Federal Defendants agree that they will meet and confer (either telephonically or in-person at the earliest possible time in a good faith effort to resolve any requests, disputes or claims before seeking further relief. If Plaintiffs and Federal Defendants are unable to resolve the request, dispute or claim themselves within 60 days of the receipt of the notice of a request, dispute or claim ox such longer time to which they agree, then they may seek relief from this Court. Plaintiffs and Federal Defendants agree not to move for a ruling of contempt of court as a remedy for an alleged violation of this Settlement Agreement, and they therefore knowingly waive any right they might have to seek an order of contempt for any such violation. 9. For purposes of this Settlement Agreement, and without conceding liability for attorneys' fees or costs, if and when fihe Court approves the Stipulated Settlement and Proposed order of Dismissal, the Forest Service agrees to pay Plaintiffs a total of $30,OQ0 in full and complete satisfaction of any and all claims, demands, rights, and causes of action Plaintiffs may have for attorney's fees, pursuant to the Equal Access to Settlement Agreement - 5

30 Case 3:12-cv BLW 3:13-cv EJL Document Filed 10/03/14 Page 8 of 12 Justice Act ("EAJA", 28 U.S.C. 2412(d and/or any other statute and/or common law theory, far all attorneys' fees and costs related. to the Lawsuit. 10. Defendant's payment shall be accomplished by electronic funds transfer to the Moore Smith Buxton Turcke IOLTA Trust Account. Plaintiffs' attorney shall provide to the undersigned counsel the appropriate account number and other information needed to facilitate payment. The Forest Service shall submit the paperwork for the payment within 20 days after the order of dismissal is entered by the Court, or within 20 days of Plaintiffs providing the necessary information to facilitate the payment, whichever is later. Plaintiffs' attorney shall provide notice to Federal Defendants' attorney when payment is received. 11, Plaintiffs agree that payment as specified in Paragraph 9 from the Forest Service shall operate as a release of Plaintiffs' claims for attorneys' fees and costs in this matter. 12. Plaintiffs' attorneys are receiving funds in trust for Plaintiffs, and Plaintiffs and their attorneys agree to hold harmless the Forest Service in any litigation, further suit, or claim arising from the deposit of the agreed-upon $30,000 amount into the Moore Smith $uxtan Turcke IOLTA Trust Account identified in Paragraph This Settlement Agreement requires the Forest Service to fulfill only the commitments specified within this Settlement Agreement and does not limit its authority with regard to the substantive outcome of any decision. Plaintiffs do not waive their ability to challenge the decisions made by the Forest Service pursuant tp Paragraphs 1-4, and the Forest Service does not waive any applicable defenses to any such claims. Settlement Agreement - 6

31 Case 3:12-cv BLW 3:13-cv EJL Document Filed 10/03/14 Page 9 of 12 Plaintiffs agree that any such challenges shall be made in a new complaint after the final decision is made. 14. This Settlement Agreement is the result of compromise and settlement, and it is based Qn and limited solely to the facts involued in the claims subject to this Settlement Agreement. This Settlement Agreement does not represent an admission by any party to any fact, claim, or defense concerning any issue in the Lawsuit. Further, this Settlement Agreement has no precedential value and shall not be used as evidence of such in any litigation ox in representations before any forum or public setting. 15. Nothing in the terms of this Settlement Agreement shall be construed to limit or deny the power of a federal official to promulgate or amend regulations. 16. No provision of this Settlement Agreement sha11 be interpreted as or constitute a commitment or requirement that the Forest Service obligate or pay funds in violation of the Anti-Deficiency Act, 31 U.S.C. 1341, or any other applicable appropriations law. 17. Plaintiffs' and Federal Defendants' undersigned. representatives certify that they are fully authorized to enter into and execute the terms and conditions of this Settlement Agreement, and do hereby agree to the terms herein. 18. The terms of this Settlement Agreement shall become effective upon signing by counsel for Plaintiffs and Federal Defendants. Plaintiffs and Federal Defendants agree that this Settlement Agreement constitutes the sole and entire agreement between them on the subject matter addressed in this Settlement Agreement. 19. This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one instrument. No Settlement Agreement - 7

32 Case 3:12-cv BLW 3:13-cv EJL Document Filed 10/03/14 Page 10 of 12

33 Case 3:12-cv BLW 3:13-cv EJL Document Filed 10/03/14 Page 11 of 12 IN THE UNITED STATES IJISTRICT COURT FOR THE DISTRICT OF II~AHO IDAI~O STATE SNOWIVIOBII, A~SQCIATION, e~ a1., Plaintiffs, v. THE UNITED STATES FOREST S~RVIC~, et al., Case No.: 3:12-CV-~Q447-BLW STIPULATED SETTLEMENT AND FROPOSFD O F~;R OF DISMISSAL Defendants, and GREAT BIfJRI~,1 ST[JIaY GRCUF, et al., Intervenor-Defendants. TQ effectuate the Settlement Agreement and Release entered into by the Plaintiffs and Federal Defendants in the above-captioned case, attached as Exhibit 1, tk~e Plaintiffs and Federal Defendants stipulate tp the ~acatur of the portion of the Clearwater National Forest Travel Management Plan ("Travel Plan" as it relates to motorized and Qver snow access management far Recommended Wilderness Areas on the Clearwater National Forest and to remand of that portion of the Travel Plan back to the United States Forest Service for a new decision and to the dismissal of this action with prejudice pursuant to Fed. R. Civ. P. 41(a. The Parties agree that this Court shall retain jurisdiction of this matter for the limited Stipulated Settlement And Proposed Order of Dismissal

34 Case 3:12-cv BLW 3:13-cv EJL Document Filed 10/03/14 Page 12 of 12 purpose of determining compliance with the attached Settlement Agreement and Release. See Kokkonen ~. Guardian Life Ins. Co. ofam., 511 U.S. 375 ( ~Tatwithstanding the preceding sentence, the Parties agree that any challenge by Plaintiffs to a new decision issued by the Forest Service regarding over snow and motr~rized access management in Recommended Wilderness Areas on the Clearwater National Forest shall be brought in a newly filed complaint rather than as a continuation of this action. IT IS SO ORDERED. The Stipulated Settlement is approved. The Court retains jurisdiction over this matter for the limited purpose of determining compliance with the attached Settlement Agreement and Release, and this matter is hereby dismissed with prejudice. Dated: Stipulated Settlement And Proposed Omer of Dismissal - 2

35 Case 3:12-cv BLW 3:13-cv EJL Document Filed 10/03/14 Page 1 of Access and Travel Management Consistency in Land and Resource Management Plans June 30, 2003 Topic; Access and Travel Management Planning Process (What decisions are made in Land and Resource Management Plan Revision? Purpose: The Chief has identified unmanaged recreation use as one of four items that pose the greatest risk to National Forests/Grasslands. Unmanaged motorized recreation is of particular concern. Although there is no specific planning requirement to address travel management in Land Management Planning, it may easily be the most contentious issue in the Revision process. This paper intends fo address the lack of consistency in the travel management process and the lack of consistency in travel management decisions made for similar management area allocations on different units. Guidance: Land Management Plan Revisions at a minimum should establish or clarify direction for the following: Geographic areas suitable for motorized use during summer and/or winter C~x~Y~~~ Geographic areas suitable for non-motorized recreation use. Develop uniform travel management strategies for Management Areas within a specified Landscape or Geographic area. Frame travel management direction with these types of Land Management Plan decisions: Desired Conditions "why statement" Objectives ``what, how, and when statement" Standards "prohibitions or limits" Special Area Designations Monitoring Requirements Desired Condition: Travel management strategies should clearly describe the intended rec~ eation and travel opportunities and be part of management area direction within a given landscape or geographic area. This desired condition should address appropriate uses in the area with a vision of future use trends over the planning horizon. Desired conditions for travel management should be independent of current vehicle technology. Objectives: These quantify how and when the desired condition will be accomplished. If an allocation is made that can not be implemented immediately, it is recommended that an objective be used to describe the schedule for eliminating non-compatible uses. Standards: When prohibitions or limits are required to meet the desired condition, they should be described as standards. Standards should be measurable and within the unit's Volume B02 Document B Pege 7 of 3