UNITED STATES DISTRICT COURT DISTRICT OF OREGON PENDLETON DIVISION. Plaintiffs,

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 1 of 83 John R. Mellgren (OSB # 114620) Western Environmental Law Center 1216 Lincoln Street Eugene, Oregon 97401 Ph: (541) 359-0990 mellgren@westernlaw.org Susan Jane Brown (OSB # 054607) Western Environmental Law Center 4107 NE Couch Street Portland, Oregon 97232 Ph: (503) 680-5513 brown@westernlaw.org Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF OREGON PENDLETON DIVISION WILDEARTH GUARDIANS, OREGON WILD, THE SIERRA CLUB, AND GREAT OLD BROADS FOR WILDERNESS, vs. Plaintiffs, SHANE JEFFRIES, in his official capacity as Ochoco National Forest Supervisor; and UNITED STATES FOREST SERVICE, Defendants, and Case No. 2:17-cv-1004-SU (lead) (Consolidated with trailing Case Nos. 2:17-cv-1091-SU and 2:17-cv-1366-SU) PLAINTIFFS REPLY BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANTS AND DEFENDANTS- INTERVENORS CROSS-MOTIONS FOR SUMMARY JUDGMENT ORAL ARGUMENT REQUESTED OCHOCO TRAIL RIDERS, et al., Defendants-Intervenors.

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 2 of 83 TABLE OF CONTENTS Page TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii I. Deference to federal agency conclusions is not unlimited, and here, the Court need not blindly defer to the Forest Service s conclusions.... 1 II. The Summit Trail project violates the travel management rule because it fails to minimize impacts to forest resources and conflict among Forest users.... 4 III. The Summit Trail project violates the Ochoco s forest plan.... 11 IV. The Forest Service admits the Summit Trail project may affect gray wolves, and therefore its no effect determination is arbitrary and capricious.... 16 V. The Summit Trail project SFEIS violates NEPA.... 24 VI. If the Court determines the Forest Service violated the law, vacatur is the appropriate and default remedy... 27 CONCLUSION... 29 CERTIFICATE OF SERVICE... 30 Page i Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 3 of 83 TABLE OF AUTHORITIES Cases Page(s) Alaska Ctr. For Env t v. U.S. Forest Serv., 189 F.3d 851 (9th Cir. 1999)... 1 Ariz. Cattle Growers Ass n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229 (9th Cir. 2001)... 19 Barnes v. U.S. Dep t of Transportation, 655 F.3d 1124 (9th Cir. 2011)... 2 Cal ex rel. Lockyer v. U.S. Dept. of Agric., 575 F.3d 999 (9th Cir. 2009)... 18 Cal. Wilderness Coal v. U.S. Dep t of Energy, 631 F.3d 1072 (9th Cir. 2011)... 1 Ctr. for Biological Diversity v. U.S. Bur. of Land Mgmt., 746 F. Supp. 2d 1055 (N.D. Cal. 2009)... 6 Central Sierra Envt l Res. Ctr. v. U.S. Forest Serv., 916 F. Supp. 2d 1078 (E.D. Cal. 2013)... 5, 7, 8 Connor v. Burford, 848 F.2d 1441 (9th Cir. 1988)... 24 Defenders of Wildlife v. Flowers, 414 F.3d 1066 (9th Cir. 2005)... 19 Earth Island Inst. v. Hogarth, 494 F.3d 757 (9th Cir. 2007)... 4 Fed. Communications Comm n v. NextWave Personal Communications, Inc., 537 U.S. 293 (2003)... 28 Fed. Power Comm n v. Transcon. Gas Pipeline Corp., 423 U.S. 326 (1976)... 28 Friends of the Clearwater v. U.S. Forest Serv., 2015 WL 1119593 (D. Idaho March 11, 2015)... 5, 6, 7, 10 Page ii Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 4 of 83 Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004)... 2 Great Basin Res. Watch v. Bur. of Land Mgmt., 844 F.3d 1095 (9th Cir. 2016)... 27, 28 Hull v. I.R.S., 656 F.3d 1174 (10th Cir. 2011)... 2 Humane Soc y of the U.S. v. Locke, 626 F.3d 1040 (9th Cir. 2010)... 15, 16, 28 Idaho Conservation League v. Guzman, 766 F.Supp. 2d 1056 (D. Idaho 2011)... 5, 8 Juliana v. U.S., 217 F. Supp. 3d 1224 (D. Or. 2016)... 1 Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012)... 17, 18 Motor Vehicle Mfrs. Ass n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)... 4 Nat l Wildlife Fed n v. Nat l Marine Fisheries Serv., 422 F.3d 782 (9th Cir. 2005)... 3 Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953 (9th Cir. 2005)... 11, 15 Native Ecosystems Council v. Weldon, 697 F.3d 1043 (9th Cir. 2012)... 1 Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002)... 11 Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372 (9th Cir. 1998)... 11 New Mexico Off-Highway Vehicle Alliance v. U.S. Forest Serv., 645 Fed. Appx. 795 (10th Cir. 2016)... 26 Northwest Motorcycle Ass n v. U.S. Dept. of Agric., 18 F.3d 1468 (9 th Cir. 1994)... 3 Page iii Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 5 of 83 Oregon Nat. Desert Ass n v. Bureau of Land Mgmt., 625 F.3d 1092 (9th Cir. 2010)... 2 Oregon Wild v. U.S. Bur. of Land Mgmt., 2015 WL 1190131 (D. Oregon March 14, 2015)... 28 P. Coast Fed n of Fishermen s Ass ns v. U.S. Bureau of Reclamation, 426 F.3d 1082 (9th Cir. 2005)... 2 P. Rivers Council v. Shepard, 2012 WL 950032 (D. Or. March 20, 2012)... 23 Perkins v. Bergland, 608 F.2d 803 (9th Cir. 1979)... 11 Pollinator Stewardship Council v. U.S. E.P.A., 806 F.3d 520 (9th Cir. 2015)... 3 Presley v. Etowah County Comm n, 502 U.S. 491 (1992)... 3 Pryors Coal. v. Weldon, 551 Fed. Appx. 426 (9th Cir. 2014)... 9 Reyn s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741 (9th Cir. 2006)... 19 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)... 28 Siddiqui v. Holder, 670 F.3d 736 (7th Cir. 2012)... 2 Sierra Club, Inc. v. Bostick, 2013 U.S. App. LEXIS 20667 (10th Cir. Okla. 2013)... 2 Sierra Club v. United States EPA, 346 F.3d 955 (9th Cir. 2003)... 3 Strickland v. Morton, 519 F.2d 467 (9th Cir. 1975)... 12 Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978)... 24 Page iv Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 6 of 83 U.S. Lines Inc. v. Fed. Maritime Comm n, 584 F.2d 519 (D.C. Cir. 1978)... 2 W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011)... 17, 18, 24 WildEarth Guardians v. Mont. Snowmobile Ass n, 790 F.3d 920 (9th Cir. 2015)... 5, 8, 9, 10, 11 Wilderness Soc y v. U.S. Forest Serv., 2013 WL 5729056 (D. Idaho October 22, 2013)... 6 Statutes 5 U.S.C. 706... 11, 16, 24, 27 16 U.S.C. 1604... 11 42 U.S.C. 4332... 28 Rules and Regulations 36 C.F.R. 212.1... 10 36 C.F.R. 212.51... 10 36 C.F.R. 212.55... 9, 10 36. C.F.R. 219.15... 11 40 C.F.R. 1500.1... 28 50 C.F.R. 402.14... 22 51 Fed. Reg. 19, 943 (June 3, 1986)... 18 Fed. R. Evid. 201... 19 Miscellaneous BLACK S LAW DICTIONARY 650 (3d Pocket Ed. 2006).... 27 Page v Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 7 of 83 Plaintiffs WildEarth Guardians, et al. ( Guardians ) hereby respectfully file this reply brief in support of their motion for summary judgment (Doc. No. 58) and in opposition to Federal-Defendants ( Forest Service ) and Defendant-Intervenors cross-motions for summary judgment (Doc. Nos. 69, 70). I. Deference to federal agency conclusions is not unlimited, and the Court need not blindly defer to the Forest Service s conclusions. Much of the Forest Service s arguments rely on deference. This Court recently urged caution in deferring to federal agencies: Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it. Juliana v. U.S., 217 F. Supp. 3d 1224, 1262 (D. Or. 2016). Throughout its responsive brief, the Forest Service asks this court to defer to its analysis on a number of substantive issues raised by Plaintiffs as determinative of the legal validity of the Forest Service s decision to implement the Ochoco Summit Trail project. See, e.g. Doc. No. 69-1 at 22, 22, 32, 34, 50, 57, 58, 59, 72. Indeed, nearly every rebuttal to Plaintiffs claims offered by the Forest Service hinges on the well-worn mantra that the agency s interpretation of either its forest plan or scientific information is entitled to substantial deference. See Native Ecosystem Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012). The Forest Service dramatically overplays its hand with respect to this rejoinder, and fails to acknowledge the substantial body of case law that rejects such cursory statements of compliance with the laws. Cal. Wilderness Coal. v. U.S. Dep t of Energy, 631 F.3d 1072, 1097 (9th Cir. 2011) ( our precedents hold that an agency cannot merely assert that its decision will have an insignificant effect on the environment, but must adequately explain its decision ) (internal quotation marks omitted); Alaska Ctr. For Env t v. U.S. Forest Serv., 189 Page 1 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 8 of 83 F.3d 851, 859 (9th Cir. 1999) ( An agency cannot avoid its statutory responsibilities under NEPA merely by asserting that an activity it wishes to pursue will have an insignificant effect on the environment ) (quoting Jones v. Gordon, 792 F.2d 821, 828 (9th Cir. 1986)). The Ninth Circuit has often rejected unsupported claims of agency deference. 1 As the Court in Barnes v. U.S. Dep t of Transportation explained, the agencies would like this court to take their word for it and not question their conclusory assertions...their word, however, is not entitled to significant deference that courts give [agency methodologies]. 655 F.3d 1124, 1131 (9th Cir. 2011). Importantly, Plaintiffs in this case are not challenging the agency s methodologies, but rather the conclusions drawn based on the information in the administrative record, which Plaintiffs have alleged is lacking. Oregon Nat. Desert Ass n v. Bureau of Land Mgmt., 625 F.3d 1092, 1121 (9th Cir. 2010) (rejecting agency plea for deference when no question of methodology was at issue, and pointing to a deficient administrative record to hold we cannot defer to a void ). And, the court may not imply[] an analysis that is not shown in the record. Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1074 (9th Cir. 2004), amended, 387 F.3d 968 (9th Cir. 2004); P. Coast Fed n of Fishermen s Ass ns v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1091 (9th Cir. 2005) 1 The Ninth Circuit is not the only appellate court to reject unfettered claims of deference to agency decisions. Sierra Club, Inc. v. Bostick, 2013 U.S. App. LEXIS 20667, 44-45 (10th Cir. Okla. 2013) (...the law is clear that the agency cannot simply state the legal standard and then recite that it made a determination that such criteria were satisfied ). See Hull v. I.R.S., 656 F.3d 1174, 1177-78 (10th Cir. 2011) (agency s explanation will not suffice if the agency s claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping ); see also Siddiqui v. Holder, 670 F.3d 736, 745 (7th Cir. 2012) ( the recitation of governing law does not excuse the [agency] from its obligation to apply the law to the facts of each case ); U.S. Lines Inc. v. Fed. Maritime Comm n, 584 F.2d 519, 535, 189 U.S. App. D.C. 361 (D.C. Cir. 1978) (deference to the agency is inappropriate under the arbitrary and capricious standard when the agency does not set forth convincing reasons for its determination in sufficient detail to allow the validity [of its decision] to be determined ). Page 2 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 9 of 83 ( we cannot infer an agency s reasoning from mere silence...rather, an agency s action must be upheld, if at all, on the basis articulated by the agency itself ) (internal quotation marks omitted). Indeed, professional judgment and knowledge do not meet the substantial evidence standard independent of data and facts. Otherwise, the standard could always be met with the sworn declaration of an expert stating the expert s experience alone made his opinion trustworthy. Pollinator Stewardship Council v. U.S. E.P.A., 806 F.3d 520, 538 (9th Cir. 2015) (N.R. Smith, J, concurring in the judgment); Northwest Motorcycle Ass n v. U.S. Dept. of Agric., 18 F.3d 1468, 1475 (9th Cir. 1994) ( If this court were only to consider the experiences of the Forest Service personnel, the court would have a difficult time upholding the Defendants decision ). It is clear that the deference accorded an agency s scientific or technical expertise is not unlimited. Deference is not owed when the agency has completely failed to address some factor consideration of which was essential to making an informed decision. Nat l Wildlife Fed n v. Nat l Marine Fisheries Serv., 422 F.3d 782, 799 (9th Cir. 2005) (internal citations omitted)); Presley v. Etowah County Comm n, 502 U.S. 491, 508 (1992) ( the principle has its limits. Deference does not mean acquiescence ). The Ninth Circuit has also long recognized that [w]hile our deference to the agency is significant, we may not defer to an agency decision that is without substantial basis in fact. Sierra Club v. United States EPA, 346 F.3d 955, 961 (9th Cir. 2003) (quoting Fed. Power Comm n v. Florida Power & Light Co., 404 U.S. 453, 463 (1972)). In sum, this court should not simply accept federal Defendants ipse dixit claims of deference due its expert determinations without carefully evaluating the administrative record, ensuring that the Forest Service considered all the relevant factors, and articulated Page 3 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 10 of 83 a rational connection between the facts found and the determination made. Earth Island Inst. v. Hogarth, 494 F.3d 757, 766 (9th Cir. 2007); Motor Vehicle Mfrs. Ass n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). // // II. The Summit Trail project violates the travel management rule because it fails to minimize impacts to forest resources and conflict amongst Forest users. In responding to Guardians arguments regarding the Summit Trail project s travel management rule violations, the Forest Service ignores or misinterprets the travel management rule itself and the legal authority cited in Guardians opening brief, and then largely attempts to show compliance by using the wrong standard. For example, the Forest Service asserts it complied with the travel management rule s minimization criteria requirements because it lessened, limited, and reduced environmental impacts. See, e.g. Doc. No. 69-1 at 66, 67-68, 70. The Forest Service also asserts that compliance with forest plan standards and implementing mitigation measures and project design features will result in minimized environmental impacts, and therefore it has successfully implemented the travel management rule s minimization criteria. See, e.g., Doc. No. 69-1 at 66-67. The Forest Service s arguments have been repeatedly rejected by several other courts and must fail. Nowhere in the travel management rule or in any legal authority interpreting the rule does it state that lessening, limiting, or reducing impacts is the same as minimizing impacts to forest resources, and the Forest Service cites to no authority to the contrary. Instead, it makes bold assertions and conclusions with the assumption that such efforts comply with the travel management rule. For example, just because the selected alternative may deliver Page 4 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 11 of 83 less sediment to project area streams than any other alternative, see Doc. No. 69-1 at 68, does not mean that the Forest Service minimized impacts to streams in the project area. If the travel management rule only meant that the Forest Service could lessen, limit, or reduce impacts to comply with the rule, it would have used one of those words. Instead, the rule instructs the Forest Service to minimize impacts 2, and the Forest Service has not shown that it has indeed minimized impacts and otherwise implemented the minimization criteria. Numerous courts have looked at the question of what is required to comply with the travel management rule s minimization criteria, and the vast majority agree that this substantive duty requires the Forest Service to explain how it minimized impacts in designing and selecting motorized routes. WildEarth Guardians v. Mont. Snowmobile Ass n, 790 F.3d 920, 930 (9th Cir. 2015) ( EIS s reference to plan-wide data and general decision-making principles is inadequate under the TMR. ); Friends of the Clearwater, 2015 WL 11195593, at *15 ( This Court agrees with the majority of other courts who have considered this issue and concludes that in order to satisfy the Travel Management Rule, the Forest Service must actually explain how it aimed to minimize environmental damage in designating routes ); Central Sierra Envt l Res. Ctr. v. U.S. Forest Serv., 916 F. Supp. 2d 1078, 1096 (E.D. Cal. 2013) (the minimization criteria impos[e] an affirmative obligation on the Forest Service to actually show that it aimed to minimize environmental damage when designating trails and areas ); Idaho Conservation League v. Guzman, 766 F. Supp. 2d 1056, 1073 (D. Idaho 2011) 2 As recognized by several other courts, the travel management rule s language with the objective of minimizing means minimize. See, e.g., Friends of the Clearwater v. U.S. Forest Serv., Case No. 13-cv-515, 2015 WL 1119593, at *15 (D. Idaho March 11, 2015) ( This outcome is the same, whether the language directs that the agency minimize the impacts or consider the impacts with the objective of minimizing. ) (quoting Idaho Conservation League v. Guzman, 766 F. Supp. 2d 1056, 1074 (D. Idaho 2011)). Page 5 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 12 of 83 ( Without some description of how the selected routes were designed with the objective of minimizing impacts, the Court cannot assess whether there is a rational connection between the facts found and the decision made. ); Wilderness Soc y v. U.S. Forest Serv., Case No. 08-cv- 363, 2013 WL 5729056, at *10 (D. Idaho October 23, 2013) (concluding Forest Service determination that it complied with minimization criteria arbitrary and capricious); Ctr. for Biological Diversity v. U.S. Bur. of Land Mgmt., 746 F. Supp. 2d 1055, 1080 (N.D. Cal. 2009) (concluding BLM violated travel management regulations implementing same Executive Orders as the Forest Service s travel management rule, and noting that the agency is required to place routes specifically to minimize damage to public resources ). The Forest Service attempts to rely on its project design features and the SFEIS environmental analysis to show compliance with the travel management rule and demonstrate that it minimized impacts, see Doc. No. 69-1 at 67, but this is insufficient without an actual demonstration that the Forest Service located routes to minimize environmental impacts. For example, in Friends of the Clearwater and similar to the Forest Service s arguments here the Forest Service argued that its route designation complied with the minimization criteria and pointed to the environmental consequences section of the FEIS as providing analysis of how the Travel Plan alternatives address minimizing adverse resource impacts and user conflicts. Friends of the Clearwater, 2015 WL 1119593, at *16. The Friends of the Clearwater court rejected these narrative descriptions and conclusions of how the plan complied with the relevant forest plan, identified environmental impacts, and reduced impacts and held that the Forest Service did not demonstrate that it had selected routes with the objective of minimizing [environmental] effects. Id. In particular, [m]erely Page 6 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 13 of 83 concluding that the proposed action is consistent with the Forest Plan does not, however, satisfy the requirement that the Forest Service provide some explanation or analysis showing that it considered the minimizing criteria and took some action to minimize environmental damage when designating routes. Id. In Central Sierra, the Forest Service had completed a much more robust explanation and analysis of its compliance with the minimization criteria than was done for the Summit Trail project, and still, there was no demonstration that the Forest Service had complied with the substantive requirements of the travel management rule s minimization criteria. There, the Forest Service included a table in the EIS list[ing] all unauthorized routes that were considered as additions to the motorized trail system; included reviews from resources specialists in a variety of disciplines to analyze impacts and identify mitigation measures for each motorized route; included another table list[ing] factors for all additions and changes to the [motorized trail system] that the Forest Service considered as part of one or more action alternative[s] including any mitigations/requirements that would be needed for each route[;] and other general discussions of the minimization criteria themselves. Central Sierra, 916 F. Supp. 2d at 1096 (emphasis added). The Central Sierra court concluded the Forest Service did not comply with the minimization criteria because the various tables of routes, explanations of impacts, and mitigation factors did not actually demonstrate that the Forest Service had applied the minimization criteria when it designated routes. Id. at 1097-98. Further, the court noted the Forest Service has not demonstrated the link between [its] assessments of the mitigation required for each trail considered and any analysis showing the Forest Service actually used Page 7 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 14 of 83 this data to minimize environmental impacts. Id. at 1098. Nor were conclusory statements enough to show that the Forest Service met its obligation to aim to minimize impacts. Id. In Idaho Conservation League, the Forest Service prepared matrices provid[ing] a description of the route criteria that were used in making route designations as part of travel planning. Idaho Conservation League, 766 F. Supp. 2d at 1071-72. The court explained the Forest Service had made a minimum showing that the minimization criteria were considered, but that [n]onetheless, the missing piece necessary to meet the requirements of the Rule is some demonstration that the minimization criteria were then implemented into the decision process consistent with the objective of minimizing their impacts. Id. at 1072. Despite the presence of the matrices, there was no way to know how or if the Forest Service used this information to select routes with the objective of minimizing impacts, and therefore, the Forest Service violated the travel management rule. Id. Similar to what the Forest Service states in regard to the Summit Trail project, in Idaho Conservation League, the Forest Service stated all practical means to avoid or minimize environmental harm have been adopted through the implementation of route designation criteria and project design features. Id. at 1073. Despite this, the court explained there is nothing in the record identifying how this happened and on what basis the conclusions were reached. Without some description of how the selected routes were designed with the objective of minimizing impacts, the Court cannot assess whether there is a rational connection between the facts found and the decision made. Id. (citation omitted). The Forest Service attempts to distinguish WildEarth Guardians on the grounds that it relates to a two-million acre planning area, as opposed to the admittedly smaller but not Page 8 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 15 of 83 insignificant planning area for the Summit Trail project. See Doc. No. 69-1 at 69. But this argument is misplaced. The travel management rule and its minimization criteria apply equally to any motorized route designation, regardless of the size of the planning area. See 36 C.F.R. 212.55(b) ( in designating National Forest System trails and areas on National Forest System lands, the responsible official shall consider effects to the following, with the objective of minimizing ) (emphasis added). There is no difference if a forest is completing a motorized travel planning process across an entire forest, or for a limited number of routes: the minimization criteria still apply and the Forest Service must demonstrate in the record how they were implemented. The Forest Service provides no authority to support the import of its irrelevant distinction. 3 Additionally, the Forest Service asserts it complied with the Ninth Circuit s directive that it apply the minimization criteria to each area it designated for [motorized] use. Doc. No. 69-1 at 66 (citing WildEarth Guardians, 790 F.3d at 930) (emphasis original). But this represents a complete misunderstanding of the travel management rule. In WildEarth Guardians, the Forest Service designated areas open to snowmobile use, but its use of the phrase area was consistent with the travel management s specific definition for a type of motorized use designation. See Wildearth Guardians, 790 F.3d at 929-930. The travel management rule allows for the designation of areas open to motor vehicle use where individuals can engage in motorized recreation across the landscape instead of being 3 Both the Forest Service and Defendant-Intervenors also attempt to explain that Pryors Coal. v. Weldon, 551 Fed. Appx. 426 (9th Cir. 2014) is a better corollary because it related to a smaller geographic area than other cases such as WildEarth Guardians. See Doc. No. 69-1 at 69; Doc. No. 70 at 12. But again, as described above, this is a distinction without a difference. The travel management rule s minimization criteria equally apply to all trail and area designations. Page 9 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 16 of 83 constrained to the confines of a specific route. 36 C.F.R. 212.51(a), 212.55. The travel management rule defines an area as a discrete, specifically delineated space that is smaller, and, except for over-snow vehicle use, in most cases much smaller, than a Ranger District. 36 C.F.R. 212.1. The Ochoco National Forest did not designate any areas as defined by the travel management rule as part of the Summit Trail project. Because the travel management rule treats areas and trails as equal in terms of the requirements to minimize impacts, see 36 C.F.R. 212.55, WildEarth Guardians also directs that the Forest Service must apply the minimization criteria to each trail it designates as well. 4 This is the more granular minimization analysis required by the Ninth Circuit, WildEarth Guardians, 790 F.3d at 931, and it would be illogical to assert any differently. And the Forest Service admits in its brief that it did not do this, rather applying the minimization criteria across the entire project area. Doc. No. 69-1 at 69 ( This is precisely what the Forest Service did here in applying the minimization criteria to the site-specific Project area. ). The Forest Service was clearly required to do more to implement the travel management rule s minimization criteria than it did here. The Forest Service did not implement the minimization criteria, nor did it demonstrate how it applied the criteria in locating routes and making route designations. Given the vast environmental impacts remaining from the route designations from the Summit Trail project, the Forest Service had an obligation to explain why those designations truly minimized environmental effects and conflicts amongst forest users. The record shows the Forest Service failed to do so. Absent 4 Guardians recognizes that some district court cases state that the Forest Service is not necessarily required to conduct a route-by-route analysis of its implementation of the minimization criteria, see, e.g. Friends of the Clearwater, 2015 WL 1119593, at *15, however those decisions predate WildEarth Guardians and did not consider its import and instruction. Page 10 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 17 of 83 more such as information on why the Forest Service could not implement the trail location best practices provided to it with Guardians comments; why the trail system could not include even fewer stream crossings while still providing motorized recreation opportunities; lists and maps of routes considered for designation, including those eliminated from consideration; and the locations of the existing disturbance areas that would be used for the new open trail system the Forest Service did not meet its obligation to minimize impacts to environmental resources and conflicts amongst user groups. This is arbitrary and capricious and violates the travel management rule and Executive Orders. WildEarth Guardians, 790 F.3d at 930-32; 5 U.S.C. 706(2)(A). III. The Summit Trail project violates the Ochoco s forest plan. The National Forest Management Act ( NFMA ) requires the Forest Service to manage its lands in compliance with its Land And Resource Management Plan ( LRMP or Forest Plan ). 16 U.S.C. 1604(i); 36 C.F.R. 219.15(b) (1982). The Forest Service must demonstrate that a site-specific project would be consistent with the land resource management plan of the entire forest. Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1377 (9th Cir. 1998); see also Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1061-62 (9th Cir. 2002) (to comply with NFMA, a Forest Service project s analysis must show that the project is consistent with the [forest] plan ). An agency s position that is contrary to the clear language of a Forest Plan is not entitled to deference. Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 962 (9th Cir. 2005). 5 Here, the Forest 5 The Forest Service cites Perkins v. Bergland, 608 F.2d 803, 806 (9th Cir. 1979) for the proposition that multiple use principles breathes discretion at every pore. Doc. No. 69-1 ta 13-14. However, the Bergland case was interpreting the Multiple-Use Sustained-Yield Act Page 11 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 18 of 83 Service asks the Court to defer to its conclusion that the Summit Trail project complies with the Ochoco Forest Plan, but a review of the record compels a different conclusion. Guardians opening brief identified various forest plan provisions with which the Summit Trail Project fails to comply. First, the Project does not meet the mandatory 6 Forest Plan requirements that it (1) protect the character of elk calving sites and [m]inimize disturbance from human activity during calving season and (2) protect wallows during rutting season. AR 1670. The Forest Service responded that (1) it prohibited trail construction, reconstruction, decommissioning, and maintenance activities during calving seasons within known elk calving areas; and (2) it would not open the trail until June 1 each year thereby prohibiting motorized use of the trails in elk calving sites for the first two weeks of calving season and that it would close the trails on September 30, each year thereby prohibiting motorized use of the trails in wallows for the final two weeks of rutting season. See Doc. No. 69-1 at 27-28. This, according to the Forest Service, protects elk calving sites, minimizes human disturbance during calving season, and protects wallows during rutting season. But these conclusions fail to actually demonstrate compliance with the Forest Plan, as there is no explanation as to how this protects the character of elk calving sites or how it minimizes human disturbance during elk calving season. The Forest Service even (MUSYA), not the National Forest Management Act, and in fact the quoted passage is from another case, Strickland v. Morton, 519 F.2d 467, 469 (9th Cir. 1975), which also interpreted MUSYA; the National Forest Management Act would not be enacted by Congress until a year later. The Forest Service can point to no case law that has held that the National Forest Management Act the statute actually at issue in this case breathes discretion at every pore. 6 The Forest Service s brief at times refers to these mandatory Forest Plan provisions as something less than a binding standard. See, e.g. Doc. No. 69-1 at 29 (referring to elk standards as guidelines ). The Forest Service must comply with these standards, however, and any reference to them as anything less should be ignored. See AR 1670. Page 12 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 19 of 83 refused to identify all of the calving or wallow sites in connection with its seasonal protection provisions. Doc. No 69-1 at 30. But the Forest Service fails to explain how not ascertaining that information could rationally lead to the conclusion that the Summit Trail project minimized human disturbance in calving sites during elk calving season. Similarly, the conclusion that wallows would be protected during rutting season is irrational when the Forest Service refused to identify where such sites are. Absent that information, the Forest Service s conclusion that wallows are protected is erroneous. The Court need not blindly defer to the Forest Service s conclusions. The Forest Service s brief also asserts the Summit Trail project s Record of Decision expanded seasonal protections to trail operation, clarifying that identified calving sites and wallows on motorized trails would be protected from disturbing activities during the restricted seasons. Doc. No. 69-1 at 27 (emphasis original). This statement is simply incorrect. Nowhere in the SFEIS or ROD does the Forest Service restrict trail operation motorized use of trails during elk calving season. The ROD notes that it modified the project s monitoring provision such that if monitoring indicates that potential habitat is actually being used as calving habitat, a seasonal restriction would be placed on the affected trail segments. AR 28759. The ROD then immediately states that in new calving areas where the character of the site may be affected due to disturbance, a seasonal restriction will be placed on project construction, re-construction, decommissioning, and maintenance activities during elk calving season. AR 28759-60. Nowhere is there any mention of any restrictions on motorized use of these trails during calving season. The Forest Service s assertion to the contrary is incorrect. The Forest Service s SFEIS and ROD do not comply Page 13 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 20 of 83 with the Ochoco Forest Plan as it relates to elk calving sites and wallows, nor did the Forest Service demonstrate compliance with the Forest Plan. Next, the Summit Trail project violates the Ochoco Forest Plan requirement that [r]ecreational activities will be managed to prevent site deterioration within riparian areas. AR 1601. During the Summit Trail project s administrative process, Guardians attempted to engage the Forest Service by providing published literature discussing best management practices for motorized vehicle use on forestlands, see AR 27053-65, in an effort to compel the Ochoco to consider ways in which it could protect riparian areas and other forest resources but this literature was ultimately ignored by the Forest Service. Guardians opening brief explained that the record contains no explanation for how a motorized route designation that included 79 stream crossings (that the Forest Service itself acknowledges would increase impacts to stream and wetland habitat) complied with this binding Forest Plan requirement. 7 Doc. No. 58 at 25-26. The Forest Service responds by pointing out other Forest Plan provisions that allow it to construct trails on the Ochoco National Forest. See Doc. No. 69-1 at 30-31. But this is unresponsive to Guardians arguments. The Forest Service points to no location in the record where the Forest Service explicitly explains how it complied with this forest plan standard. Nor could it, as the Summit Trail project record does not contain any discussion about this binding forest plan standard. The Forest Service s brief attempts to provide a post-hoc explanation for why the Summit Trail project meets this Forest Plan standard. See id. at 31-32. But a post-hoc rationalization for agency decision-making appearing for the first 7 Nor does the Forest Service explain how constructing a motorize trail across 79 streams minimizes impacts to forest resources. Page 14 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 21 of 83 time in litigation cannot be used to defend agency action. Humane Soc y of the U.S. v. Locke, 626 F.3d 1040, 1049-50 (9th Cir. 2010) (internal citation omitted). As in Humane Soc y, here, the Forest Service s post-hoc explanations serve only to underscore the absence of an adequate explanation in the administrative record itself. Id. at 1050. And even if this was not a post-hoc explanation, the reasoning is unpersuasive. The Forest Service s brief lists several features of the Summit Trail project that purportedly demonstrate that the recreational activities provided by the implementation of the Summit Trail project would be managed to prevent site deterioration within riparian areas. Doc. No. 69-1 at 31-32. But noting how the project avoids some impacts by implementing the selected alternative in no way shows compliance with the forest plan standard. The Forest Service s brief on this issue concludes by noting the Summit Trail project minimize[s] impacts on riparian areas. Even if true, this is not what the Ochoco s forest plan requires. It requires the Forest Service to prevent site deterioration within riparian areas. The Forest Service failed to manage motorized recreational activities to prevent site deterioration within riparian areas, and certainly did not demonstrate compliance with this Forest Plan provision. Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953 (9th Cir. 2005) (requiring EIS to demonstrate compliance with forest plan standards). Finally, the Summit Trail project fails to comply with road density standards. The Ochoco s forest plan requires roads and trails to be at the lowest density which meets longterm resource needs. AR 1648. The Forest Service explained in the SFEIS response to comments that this forest plan standard would be met [b]y closing or decommissioning a variety of specific routes. AR 25852. Elsewhere, the Forest Service explained that the Page 15 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 22 of 83 Summit Trail project does not actually close any roads. AR 25288. In response, the Forest Service acknowledges its statement in its SFEIS, but merely explains that the SFEIS response to comments is incorrect. Doc. No. 69-1 at 43. This is the very definition of arbitrary and capricious agency decision-making. The Forest Service cannot now craft a convenient litigation explanation for how it will meet forest plan road density standards and ignore what it said during the administrative process. See Humane Soc y, 626 F.3d at 1049-50. If the Forest Service was indeed mistaken in its SFEIS statement for how it would comply with Forest Plan standards related to road density, it could have issued an errata prior to signing the ROD, as it did multiple times for other errors. See AR 28328 (errata to hydrology and aquatic species report); AR 28684 (SFEIS errata number 2); AR 28717 (SFEIS errata number 3). But it did not, and the ROD must stand or fall based on its explanations for forest plan compliance contained in the administrative record. The record must clearly demonstrate that the project complies with applicable forest plan standards, but as explained in Guardians opening brief and above, the project violates the Ochoco Forest Plan in multiple ways. Authorizing a project that violates forest plan requirements is arbitrary, capricious, and not in accordance with NFMA. 5 U.S.C. 706(2)(A). IV. The Forest Service admits the Summit Trail project may affect gray wolves, and therefore its no effect determination is arbitrary and capricious. As explained in Guardians opening brief, the Forest Service admits that motorized trails and their use such as that contemplated by the Summit Trail project may affect gray wolves. See Doc. No. 58 at 33 (citing to complaints challenging Summit Trail project and Forest Service answers to those complaints admitting (1) roads and motorized routes can Page 16 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 23 of 83 affect wolves by reducing available prey and decreasing suitability of denning, foraging, and dispersal habitat; and (2) that wolves avoid areas with motorized vehicle activity and concentrated human activity). There can be no question that the motorized trails and associated motorized use of those trails may affect gray wolves as the bar for meeting the may affect standard is incredibly low. See W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 496 (9th Cir. 2011) ( the minimum threshold for an agency to trigger consultation with the Wildlife Service is low any possible effect triggers the formal consultation requirement ) (citation omitted); Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1027 (9th Cir. 2012) ( actions that have any chance of affecting listed species even if it is later determined that the actions are not likely to do so require at least some consultation under the ESA ) (emphasis added). The Forest Service has not cited any authority contesting this low bar, nor has it explained why the effects that it admits impact gray wolves do not meet this bar. At its core, the dispute between the parties regarding the Forest Service s no effect determination comes down to whether or not the Forest Service must initiate consultation with the U.S. Fish and Wildlife Service under Section 7 of the ESA when a species is only known to be present on the landscape at certain times. The parties agree that wolves are listed as endangered under the ESA, that they sometimes occur in the project area, and that construction and use of motorized trails impact gray wolf behavior and that of their prey. The extent or magnitude of these impacts, however, does not matter when an agency is determining whether a project may affect a listed species. Kraayenbrink, 632 F.3d at 496; Karuk Tribe, 681 F.3d at 1027. All that matters is whether the project may affect an ESAlisted species, such as the gray wolf, in any possible way. Kraayenbrink, 632 F.3d at 496 Page 17 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 24 of 83 ( [A]ny possible effect, whether beneficial, benign, adverse, or of an undetermined character, triggers the formal consultation requirement. ) (citing 51 Fed. Reg. 19,926, 19,949 (June 3, 1986); Cal ex rel. Lockyer v. U.S. Dept. of Agric., 575 F.3d 999, 1018-19 (9th Cir. 2009)). Additionally, the U.S. Fish and Wildlife Service decided to explicitly keep the may affect standard as very expansive and inclusive intending that truly any effects to an ESA-listed species trigger an obligation to consult. See 51 Fed. Reg. at 19,943 (noting that standard was expanded to may affect because prior proposed standard of may adversely affect was too restrictive). The Forest Service asserts, with no support, that a no effect determination is rational when a species is not known to actually live and breed in a project area. See AR 25479 ( Since wolves are not known to occupy habitat on the Ochoco National Forest the determination is No Effect (NE) for gray wolves. ); Doc. No. 69-1 at 71-72. According to the Forest Service s logic, that a species occurs in a given project area is not enough. It needs to be documented living and breeding in a project area in order to be affected by a project. But the Forest Service cites to no statutory, regulatory, or judicial authority allowing this interpretation of the ESA, nor does it explain how transient wolves will not be affected by the Summit Trail project. See Doc. No. 69-1 at 70-76. Instead, it concludes without citation that under the ESA consultation rubric just described [in its brief], the Forest Service was not required to consult with FWS and it had no further obligations under the ESA. Doc. No. 69-1 at 71. This is simply wrong. 8 Nowhere does the ESA include a residency or 8 The Forest Service attempts to rely on Defenders of Wildlife v. Flowers, 414 F.3d 1066 (9th Cir. 2005) to support its contention that the ESA requires residency before there can be any effects to a species, but that is a misinterpretation of Flowers facts. The Ninth Circuit s Page 18 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries

Case 2:17-cv-01004-SU Document 72 Filed 04/06/18 Page 25 of 83 breeding standard before consultation is required. Importantly, nor does the ESA require residency for an area to be considered occupied. Indeed, the U.S. Fish and Wildlife Service Endangered Species Consultation Handbook explains occupied habitat is not limited to areas in which the species resides, as it includes habitat that merely contains individuals of the species. Arizona Cattle Growers Ass n v. Salazar, 606 F.3d 1160, 1165 (9th Cir. 2010). The Forest Service argues that Guardians conflates the may be present standard with the may [a]ffect standard. Doc. No. 69-1 at 73. Guardians agrees that the may be present and may affect questions are separate inquiries as it explained in its opening brief however, Guardians clearly showed that because gray wolves may be present in the project area, and the Forest Service admitted that the motorized trails and their use may affect gray wolf behavior and that of their prey, that the no effect determination was arbitrary and capricious. See Doc. No. 58 at 32-34 (citing to Forest Service admissions regarding wolf presence on the Forest and in the Project area and impacts to wolves and their prey from the presence and use of motorized trails). The Forest Service repeatedly asserts that it conducted a biological evaluation where it considered impacts to gray wolves because it acknowledged that wolves may be present. See, e.g. Doc. No. 69-1 at 73. Although not explained, these repeated statements imply that Flowers opinion is rather devoid of factual details. However, review of the federalgovernments answering brief reveals that there, [n]o pygmy owl has ever been detected on the [project area], and only in one 1998 survey was a pygmy-owl found near the area. Exhibit A at 25. As such, the Ninth Circuit affirmed a no effect determination. This is markedly different from the situation here, where wolves are known to occasionally be present on the Ochoco National Forest generally, and the Summit Trail project area specifically. The government s answering brief from Flowers is attached as Exhibit A for the Court s convenience. The Court may take judicial notice of public records. See Fed. R. Evid. 201(b)(2); Reyn s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006) (court may take judicial notice of court filings and other matters of public record ). Page 19 Plaintiffs Reply in Support of Motion for Summary Judgment and in Opposition to Cross Motions for Summary Judgment WildEarth Guardians v. Jeffries