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MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT -- 1

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION

SOUTHERN FOUR WHEEL DRIVE ASSOC., ) UNITED FOUR WHEEL DRIVE ) ASSOCIATIONS, THE BLUERIBBON ) CASE NO: 2:10-cv-00015-MR-DCK COALITION, ) ) Plaintiffs, ) ) v. ) MEMORANDUM IN SUPPORT ) OF PLAINTIFFS’ MOTION UNITED STATES FOREST SERVICE, ) FOR SUMMARY JUDGMENT NANTAHALA NATIONAL FOREST, ) MARISUE HILLIARD, Forest Supervisor, ) ) Defendants. ) ) and ) ) TROUT UNLIMITED, PUBLIC EMPLOYEES ) FOR ENVIRONMENTAL RESPONSIBILITY, ) WILD SOUTH, ) ) Intervenor-Defendants. ) ) Plaintiffs Southern Four Wheel Drive Association, United Four Wheel Drive

Associations and BlueRibbon Coalition (the “Recreation Groups”) hereby present

their memorandum of law in support of their motion for summary judgment.

I. INTRODUCTION

This case focuses on the Nantahala National Forest’s (“Forest” or “agency”)

management of motorized vehicle travel at the Upper Tellico Off-Highway

Vehicle System (the “System”). The Recreation Groups challenge final agency

actions beginning with the “temporary” Orders dated December 20, 2007 (the

Case 2:10-cv-00015-MR -DCK Document 33 Filed 05/16/11 of 37


“Interim Orders”), their continuation through Orders dated March 31, 2009 (the

“Second Interim Orders”) and the Decision Notice/Finding of No Significant

Impact (“DN/FONSI”) dated October 14, 2009, and associated Environmental

Assessment (“EA”). The merits will be presented to the Court via cross-motions

for summary judgment.

The Forest Service illegally committed to closing the System before

engaging the public. Before even starting public analysis under the National

Environmental Policy Act (“NEPA”) the Interim Orders cemented a legacy of

closure. See, Answer (Dkt. # 22) at ¶ 37 (acknowledging Interim Orders had “a

practical effect of eliminating OHV access….” ). The agency’s actions here do not

withstand even deferential “arbitrary and capricious” review.

II. STATEMENT OF FACTS

The administrative record here is voluminous. The Recreation Groups will

generally summarize those aspects relevant to their claims.

A. General Background and Impetus to Action.

The Nantahala National Forest encompasses over 531,000 acres in western

North Carolina. Even before Forest Service ownership, the “heart” of off highway

vehicle (“OHV”) use in the area was a 9,000 acre timber company tract. AR 265.

OHV use of this area “dat[es] back at least to the 1940’s….” Id. The Forest

Service acquired the property in the early 1980’s, “realiz[ed] the lack of OHV



opportunities on the national forests in Western North Carolina” and “began to

look at the possibility of maintaining OHV use in the area.” Id. Unacceptable

routes were closed, “a 30-mile trail system evolved” and a stakeholder group was

formed to evaluate management of the System. Id.

The 2004 Assessment evaluated the System, identified “key elements” and

outlined methods and “action items” for management. The goals included

“provid[ing] opportunities for an enjoyable experience for visitors…while

protecting the natural resources…”, “[m]aintain[ing] a high level of water

quality…” and maintaining and enhancing partnerships and cooperation with

stakeholders, local communities and others. AR 270. “[A]ction items” included a

full-time on-site administrator, water quality monitoring, bridge/stream crossing

upgrades, route closures, and increased revenue generation. AR 271-275. The

2004 Assessment observes that “[m]onitoring, coordination, and a collaborative

approach will [ ] all be critical in sustainable management of the [System] and

Watershed.” AR 270.

This litigation reflects the diverging views of at least three “partners” and

their respective commitment to collaborative management. The Recreation Groups

“have contributed thousands of hours of labor and hundreds of thousands of dollars

of resources for OHV trail maintenance and construction improvements.” AR 265.

The Forest Service manages for “multiple use.” See, 16 U.S.C. § 1604(e); 16



U.S.C. §§ 528-531; 70 Fed.Reg. 68264 (Nov. 9, 2005) (“[m]otor vehicles are a

legitimate and appropriate way for people to enjoy their National Forests - in the

right places, and with proper management.”). But preservation interests have

perhaps most influenced management of the System.

On June 21, 2007, a private meeting occurred. See, AR 773 (notes from

“USFS-Trout Unlimited Meeting…”). Whatever prompted it, the agency compiled

information summarizing management efforts for the preceding five years in

anticipation of the meeting. See, AR 762-772. Agency personnel summarized

ongoing collaboration and intended future management efforts, and

preservationists expressed polite appreciation but concluded “the fixes are not

working.” AR 774. The closing comments refer to an “upcoming Stakeholder’s

meeting, scheduled for August 24.” Id.

One week after their private meeting the preservation groups submitted a

“notice of intent” to file civil suit (“NOI”) for alleged Clean Water Act violations.

See, AR 776-798. The NOI consists of 12 pages of single-spaced text and 17

photographic exhibits. The NOI artfully advanced the refrain that the Forest

Service was violating various federal laws and regulations through continued

authorization of vehicle travel on the System, and requests “immediate action”

under threat of a suit 60 days after the letter “to remedy” the “alleged violations.”

AR 789. The NOI proceeded from the factual premise that the System “is



devastating water quality and trout populations” and that “benthic

macroinvertebrate surveys confirm that sediment from the trail system is degrading

aquatic habitat in affected streams.” AR 779.

The August 24, 2007 stakeholder meeting went forward as scheduled. The

NOI was a topic of primary interest. AR 816. Additional study with public

involvement and preservationist attendees’ were “a little disappointed in the fact

that apparently the decision has been made to do NEPA analysis…instead of

temporary closing. My feeling is that if it were looked at a strictly legal standpoint

we would not be having this discussion.” AR 820.

The mid-September 2007 chronology is crowded and sometimes

contradictory. A single page document entitled “Sept 29 Purpose, Objectives,

Outcomes” appears in the record index with a date of September 4, 2007. AR 829.

This document discusses a meeting with the purpose of “[w]ork[ing] together and

across user groups to evaluate or improve upon existing alternatives or develop/add

new alternatives to the potential range.” Id. The discussion reflects an inductive

NEPA analysis, in which the agency would engage the public before and during a

review process that would consider “an appropriate range of alternatives” for

management. Id.; see also, 40 CFR § 1500.1 (“NEPA procedures must insure that

environmental information is available to public officials and citizens before

decisions are made and before actions are taken.”).



The Forest received information dated September 13, 2007 from Trails

Unlimited, a Forest Service internal team with specialized knowledge about OHV

management. Their report evaluates various trail components and proposed

management solutions. The team concluded lack of effective

management/maintenance were the primary issues. The team recommended:

[c]onstruction and maintenance of effective water control structures should be the number one priority….There appears to have been a number of drainage structures built on the OHV trails in the past, however, they are not currently maintained so as to be effective water control in many places. In some locations, the drainage structure remains in place, however, it is not working due to the outlet being blocked. In others, the drainage structure has been breached or worn down to where it no longer diverts water. This is occurring on about 65% of the OHV trail system.

AR 838. They outlined work required and associated budget estimates, both for

initial route reconstruction and ongoing maintenance. AR 840-843.

Any interest in the Trails Unlimited report and devotion to analysis and

public planning was betrayed by the Forest’s “scoping notice” dated September 17,

2007 proposing immediate closure to parts of the System. AR 855. The notice

states the “actions are needed to correct and/or repair ongoing impacts to the

aquatic resource caused by sediment entering area waters from the Tellico trail

system.” Id. Immediate closure of Lower Trail #2, Trail #7 and Trail #9 was

proposed plus a seasonal closure from January 1 to March 31 for other routes in the

System. Id. Public comments were requested by October 17, 2007. Id.



On September 21, 2007 another private meeting occurred between the Forest

and preservationist interests. AR 859. The parties discussed the proposed closure

orders and preservation interests seemed particularly interested in keying closures

to route segments “within 100 feet of the streams.” Id. The meeting closed with the

preservation interests “saying they are encourage[d] by our actions to date but

continue to be concerned that we are not doing enough given the ‘crisis’ state of

the trout watershed.” Id.

B. Overview of Decisions and Process.

The basic decisionmaking framework is important in this case. The Forest

received comments on the proposed closure orders. The record lists the email

addresses of 181 of individual responders. AR 879-883. The only copy of any

comment included in the record is the one provided by the preservationist interests

reiterating the themes of the NOI. AR 865-878. A flurry of agency internal activity

took place reviewing the comments (AR 885-887; 2026-2034), designing and

beginning site analysis (AR 2114-2125, Water Resource Effects Monitoring Plan),

hiring a project coordinator (AR 2036), and coordinating a long term management

and planning strategy (AR 2037-2038). The agency faithfully issued the closure

orders on December 18, 2007. AR 2141-2145.

On June 9, 2008 the Forest issued another scoping notice for a proposed

action to “reduce the trail system from its current 39.5 miles…to 24 miles



and…implement use-management techniques including seasonal and wet weather

closures….” AR 2824. A 30-day comment period was announced ending July 9,

2008. AR 2832.

The agency prepared a document called an “environmental assessment”

[EA], which in the argot of NEPA is “a concise public document” which “serves

to” accomplish various purposes including to “provide sufficient evidence and

analysis for determining whether to prepare and environmental impact statement

[EIS] or a finding of no significant impact [FONSI].” 40 CFR § 1508.9.

Depending on whether the agency ultimately decides to prepare an EIS or not, the

EA “aid[s] compliance with [NEPA] when no EIS is necessary” or “facilitate[s]

preparation of a statement when one is necessary.” Id. at (a)(2) & (3).

On February 27, 2009 the agency issued “two proposals regarding

management of the…System.” AR 5699. First was the “predecisional EA” that

followed from the scoping notice. The Forest received about 1,500 comments in

response to the scoping notice. Id. The EA identified six (6) alternatives analyzed

in detail, including Alternative B, the “ ‘proposed action’ that was released in June

2008 for public comment…developed to address the problems initially identified

in trail condition surveys conducted in 2007-2008.” Id. The cover letter further

said “impacts to water quality are so significant that I cannot recommend keeping

the System open at this time” and stated Alternative C, which would maintain only



ten (10) miles of Forest roads, was the Forest Supervisor’s “preferred alternative.”

AR 5700. This statement was further reflected in the second proposal, which was

another “temporary” closure of the System effective April 1, 2009. AR 5699.

Comments were again requested for a 30 day period. AR 5700. Notwithstanding

the continuing “interim” closures, the proposed new closure and the announcement

that closing all but 10 miles of roads has become the preferred alternative, the

Forest Supervisor announced in the letter “I want to emphasize that a final decision

has not yet been made.” Id.

The Forest issued the “temporary” closure order on March 31, 2009. AR

6296-6302. The timing is noteworthy, for such orders are designed to be

“temporary, emergency closures” to provide “short term resource protection….”

36 CFR § 212.52(b); AR 6298. The prior “temporary” orders issued in December,

2007, were still in effect, and with the expiration of the seasonal closure on March

31 at least part of the System would have otherwise become theoretically open to

vehicle travel.

During the same thirty days the Forest was formalizing the closure order, the

public was again offering voluminous comment on the EA. Apparently “[o]ver

2,000 individuals, organizations, or agencies submitted comments….” AR 10648.

The final decision was released on October 14, 2009 through a Decision



Notice and Finding of No Significant Impacts (DN/FONSI or Decision).1 The

Decision formally adopts Alternative C, which “eliminates the System.” AR

10614. The Decision states that this alternative “best meets the purpose and need

for this action” and “gives us the best chance of meeting the ‘no visible sediment’

standard in the Forest Plan and therefore related state water quality standards.” AR

10614; 10624. Released with the DN/FONSI were other documents including a

final EA (AR 10639-10893) and responses to public comments on the

predecisional EA (AR 10436-10604).

The DN/FONSI was subject to administrative appeal under 36 CFR part

215. Three (3) appeals were filed, including one by the Recreation Groups. See,

AR 10920-10941. That appeal was denied and the Decision affirmed. AR 10970-

10987. The appeal decision defined the conclusion of the administrative process.

C. Water Quality Analysis.

Water quality and related aquatic wildlife issues are the key drivers of the

challenged decision to close the System. Detailed understanding of these issues is

essential to the Recreation Groups’ challenge.

Any case like this requires one to digest a voluminous and complex

administrative record. The Recreation Groups focus on key aspects of the

1 In fact two (2) separate DN/FONSIs were issued, one addressing the paving of Trail 1 and the other addressing closure of the rest of the System. While the Trail 1 decision does impact historical recreation in the area, the Recreation Groups focus on the second Decision in this motion.



Decision’s rationale in guiding review. First, the Decision contends the project was

necessary because (a) Forest Plan standards for soil and water were being violated

(AR 10618); (b) state standards for turbidity were being violated (AR 10619); and

(c) brook trout reproduction was being negatively affected (id.). These

observations are reflected in the Decision’s “rationale” section, which concludes

that eliminating the System “gives us the best chance of meeting the ‘no visible

sediment’ standard in the Forest Plan and therefore related state water quality

standards.” AR 10624. The rationale further justifies closure to reduce overall

sediment load “thus potentially reducing the turbidity in the river.” AR 10624-

10625. The final bullet point of the rationale concludes:

All these actions will lead to improved habitat for native brook trout (EA Chapter 3.2.3). I have an obligation as a land manager to do all I can do to reduce the human induced sedimentation from Trails 2 through 12 and lessen this environmental stressor to the aquatic resources. This will help ensure meeting water quality standards and support long-term persistence of brook trout within the watershed.

AR 10625. The record minimally supports, and often contradicts, these assertions.

There is a limited degree of “hydrologic connectivity” between the System

and the River. Of 39.3 miles of trails existing in 2007, only 12.21 miles (roughly

31 percent) are deemed “hydrologically connected” to the Tellico River. See, AR

5520-5521 (predecisional EA). More important are the trail mileages in close



proximity to streams.2 Only 6.05 miles of former trails were located within 100

feet of streams, and only 1.0 miles within 25 feet. AR 9985 (Table 3.1.1.5). The

mere presence of sediment associated with the trail system does not equate to

delivery of sediment to the Tellico River or its tributaries.

1. Turbidity.

Turbidity played a large role in the decision to close the System. The Final

EA generally summarizes the agency’s analysis of turbidity.3 The relevant standard

under North Carolina law provides:

the turbidity in the receiving water shall not exceed…10 NTU in streams, lakes or reservoirs designated as trout waters…if turbidity exceeds these levels due to natural background conditions, the existing turbidity level shall not be increased. Compliance with this turbidity standard can be met when land management activities employ Best Management Practices (BMPs)…recommended by the Designated Nonpoint Source Agency…BMPs must be in full compliance with all specifications governing the proper design, installation, operation and maintenance of such BMPs”

AR 10681 (citing 15A NCAC 02B .0211 (3)(k)) (ellipses in EA). The Forest

Service contends, erroneously, that “the turbidity standard is not being met in the

upper Tellico River watershed” because the 10 NTU standard has been violated 2 The preservationist groups’ NOI emphasizes this factor, alleging “[m]any designated trails run parallel and in close proximity to mountain trout streams.” AR 779; see also AR 784-785 (alleging violation of state law prescriptions within 25 foot “streamside management zone”); AR 787 (focusing on trails within 100 feet of streams); see also AR 859; AR 10519-10520. 3 Turbidity is a measure of light reflected through particles in water, measured in Nephlometric Turbidity Units (NTU). AR 10681.



“during storm events….” AR 10682-10683. The discussion acknowledges in very

general terms that the 10 NTU standard “can be exceeded in all streams during

major storm runoff events, regardless of watershed management.” Id. The

regulation then requires analysis of “natural background conditions” and a

determination of whether the “existing turbidity level” has increased. Without

attempting this analysis, the EA concludes “streams that exceed the standard by a

larger degree than a reference stream are a concern for watershed managers

desiring to maintain protected uses.” AR 10683-10684 (emphasis added).

Even the carefully selected data presented does not support the Forest’s

conclusions. The first conclusion is that turbidity standards are exceeded during

storm events. See, AR 10682 (Table 3.1.1.7); AR 10683 (Figure 3.1.1.7); AR

10684 (Figure 3.1.1.8). This information is presented to support the conclusion that

Upper Tellico River sites exceed the state turbidity standard, and to provide

comparison to “reference sites” outside the System at Tipton, Citico and Sycamore

Creeks. The first obvious conclusion, is that virtually all streams exceed the 10

NTU standard during storm runoff. Indeed, it may not be coincidental that the

Table 3.1.1.7 and Figure 3.1.1.7 selectively focus on the 2002-2004 period, for

elsewhere the record states a “large flood event” occurred in July, 2003. AR 435.

This fact alone does not demonstrate a violation of the state standard, due to the

“background conditions” exception, applicable here given the elevated levels in the



reference sites.4 Instead, the relevant questions become whether “the existing

turbidity level” has been increased, or whether BMPs are, or can become, in

compliance with applicable standards. These questions are not answered.

The agencies charged with enforcing the state standards find all relevant

waters to be supporting designated uses. AR 10667-10668. The record does not

support the Forest’s conclusion that turbidity standards are being violated.

2. Trout Populations.

An additional area of focus is trout populations, and specifically native

brook trout. The project’s “purpose and need” in the Final EA is “to greatly reduce

the amount of soil and other material leaving the road and trail system and entering

the upper Tellico River and its tributaries and thereby improve the habitat for

native brook trout.” AR 10643. The Forest Supervisor said “I have an obligation as

a land manager to do all I can do to reduce human induced sedimentation….This

will help ensure meeting water quality standards and support long-term persistence

of brook trout within the watershed.” AR 10625. But, the record reveals a paucity

of data on brook trout. Recall that preservationist interests demanded immediate

action and warned that “newly released data document[ ] an accelerating decline of 4 None of the reference streams contain more than one sampling site. There is virtually no discussion about whether the selected site accurately reflects NTU values in other portions of the reference watershed. As the multiple Tellico River sites demonstrate, there can be meaningful variation between sites with the same watershed. Compare Jenks Branch @ mouth (40+ NTU) and Trib to Tellico #2 2 trail 5 (appx. 7.5 NTU) (AR 10684 Figure 3.1.1.8).



trout populations” (AR 865), that trout are in danger of being “extirpated from the

Tellico River” (id.) and aquatic habitat is “in trouble” dictating “[u]rgent and

substantial action…to avoid a crash in trout populations.” AR 877.

The Forest repeatedly cites a single source on brook trout – a report entitled

“A Summary of Wild Trout Population Montoring in the Tellico River Watershed,

1994-2006.” AR 739-761 (released by NC Wildlife Resources Comm’n or

NCWRC). That source is cited for the proposition that a sampled site within the

System watershed “appeared to have lower densities of age-0 brook trout than the

Tipton Creek site” outside the System. AR 10712 (Final EA); AR 5552

(predecisional EA). The Decision refers to this data, and the unremarkable

conclusion that fine sediment deposition can affect brook trout spawning, in

announcing a key pillar motivating the Decision, that “Brook trout reproduction is

being negatively affected.” AR 10619.

A more probing review exposes a more complete picture. First, the agency

overstates the NCWRC conclusions. The “sample size is small” for each of the two

sites referred to in the EAs. AR 10712. Fixation on two sites is misplaced since

“[m]ean densities of age-0 trout were extremely variable at the Tellico River sites.”

AR 743. The report cautions it “was not designed to determine cause-and-effect

relationships of OHV use on wild trout populations.” AR 741. And concludes

further research is needed to assess many factors, including “measures of sediment



loading (sources, rates, and timing) and other water quality parameters.” AR 745.5

Additionally, the agency’s own 2005 watershed assessment provides broader

context that for whatever reason is omitted from the EAs. This discussion begins

with analysis of occupied brook trout habitat, and concludes that habitat loss within

the Upper Tellico River is less than comparable streams and “that most watersheds

within the Forest (and the species’ range as a whole) have actually experienced

much greater range loss….” AR 433.

The 2005 watershed assessment presents a dramatically different picture of

brook trout issues than the EAs. It states:

Until knowledge gaps are filled and a closer look at the fisheries resource is taken within the upper Tellico area, it can only be speculated that this [habitat] loss is attributable to several factors. These include heavy recreational use of the area, historic land uses, introduction of exotic species (brown and rainbow trout), and environmental conditions such as droughts, floods, acid precipitation, and other climatic conditions. Locally speaking, brook trout density estimates are too low to produce accurate trend information. Under the assumption that brook trout populations follow the same trends as rainbow trout in similar habitats, Figure 17 displays local trout population trends within the upper Tellico area. This pattern, over a ten year period, is typical of southern Appalachian trout populations, and has been highly correlated with droughts and floods. Low trout densities in 2003 are reflective of a large flood event in July. 2004 trout densities showed a measurable

5 Early planning documents refer to the need to “[c]ontinue to monitor fish populations.” AR 442. The record does not contain the results of any such continuing monitoring efforts.



improvement, which is expected to continue as long as climatic conditions remain favorable. What is important to note is that overall trout densities within the upper Tellico area are measurably lower than streams of similar size, topography, and geology across the Forest (Figure 18). This may be indicative of the degraded habitat reference earlier.

AR 434-435. The brook trout record is inconclusive and sometimes contradictory.

3. Benthic Aquatic Macroinvertebrates.

The agency did perform systematic assessment of the benthic aquatic

macroinvertebrate community, ie aquatic insects. However, the results were far

from those apparently sought by the agency, and they have been ignored,

misrepresented and hidden from public review.

In December, 2007 the Forest hydrologist provided a thorough outline of

water resources issues and a “monitoring plan.” AR 2114. The timing is

noteworthy, for this falls within the flurry of agency activity responding to the NOI

and at about the same time as the initial temporary orders restricting access to the

System. Aquatic macroinvertebrates are characterized as “important indicators of

water quality”, “useful indicators of stream quality” and sensitive to water quality

thereby “often…more effective indicators of stream impairment than chemical

measurements.” AR 2121. The “existing condition” states only “limited”

monitoring exists but “reveals a somewhat depressed community structure”,

contends the trail network has increased fine sediment transport and speculates “it



is reasonable to assume that aquatic macroinvertebrate communities have

suffered.” AR 2121-2122. The report ends with the promise that more thorough

monitoring will “answer the question: Does the population demographics of

macroinvertebrates indicate improvement of water quality?” AR 2122.

The monitoring did occur through a contract with Western Carolina

University to begin in 2007, follow a detailed protocol, and “continue for the life

of this plan.” AR 2122.6 The results were reported in a thesis by a WCU masters

candidate named Sheree Ferrell. See Declaration of Paul A. Turcke, Exhibit “A.”

The methodology closely tracked that outlined by the Forest hydrologist.

Compare, id. at 207 to AR 2122 (describing collection procedure and sampling

dates). Ferrell found:

Based on the statistical results, it is unclear whether the Upper Tellico OHV Area is having a negative effect on the macroinvertebrate communities. Within the mainstem group the only statistically significant variable was mean number of EPT per kick (Figure 3). Site 1 on the Tellico River had the highest value. It seems more likely that other factors may have caused this difference rather than OHV activity.

Ferrell Thesis at 45 (Turcke Decl., Ex. “A”); see also, Declaration of Robert W.

Kelley at ¶¶ 4, 7.

6 Early portions of the record also refer to this effort. See AR 763. 7 The citations refer to page numbers of the exhibit, not the thesis.



The Forest was aware of the ongoing Ferrell research. The predecisional EA

(released in February, 2009) acknowledges the monitoring “since May 2007 by

Western Carolina University” and states “[p]reliminary results have been

inconclusive (Ferrell unpublished data). In general, species diversity among all

sites has been similar.” AR 5554. The draft version of the final EA (dated July 13,

2009) contains the same language. AR 10019. The final EA states:

The aquatic insect community within the upper Tellico River watershed has been monitored since May 2007 by Western Carolina University. . In general, species diversity among all sites was similar for macroinvertebrates (Ferrell 2009). Ferrell (2009) also found a positive correlation of percent silt/clay particles and small aquatic invertebrates (meiofauna). These results suggest that the sedimentation from the OHV activities has altered the aquatic invertebrate community at the smaller scale but the effects are reduced for the larger size invertebrates.

AR 10714 (extraneous period at end of first sentence in original). The Final EA

does not accurately reflect the conclusions presented by Ferrell. Dr. Kelley states

the Final EA misrepresents the Ferrell conclusions and reiterates “the study did not

find any adverse effect on aquatic macroinvertebrates.” Kelley Decl. at ¶ 6.

Despite these citations, the Ferrell thesis was not included in the “references

cited” section of the Final EA. See, AR 10829-10834. The Answer admits as much

and characterizes the omission as “inadvertent[ ]”. Answer (Dkt. #22) at ¶ 76.

Aside from the early references in the record to the ongoing WCU research, the



record is nearly devoid of any reference to the Ferrell research.8 There is one

notable exception. An interdisciplinary team report to which the index assigns the

date of April 3, 2009 includes bullet points discussing “aquatic habitat” and states:

Need to be aware that the Western Carolina grad student will be defending her thesis on 4/6- she found no statistical difference between reference and other sites. Will need to examine more closely.

AR 9779 (emphasis added).

The Forest Service did not dispassionately accept these findings, but

immediately “requested” that the North Carolina Department of Natural Resources

“conduct a benthological survey.” AR 10159.9 The record does not reveal the date

of this request, but the actual survey took place “during the week of April 20,

2009.” Id. The cover memorandum, dated August 17, 2009 states “[t]he data

generated from these collections suggest adverse impacts to many of the streams in

the OHV.” Id. The report makes no mention of the Ferrell research. See, AR

10180-10182. Any suggestion of adverse impacts is questionable; the 2009 DENR

8 This silence seems curious, as Ferrell implies that meaningful and mutual communication occurred between her and the agency. See, Acknowledgements (Turcke Decl., Ex. “A” at 3) (first acknowledging the Forest Service “for their support in completing this project”); Id. at 20 (“stream sample sites were selected by US Forest Service personnel in 2006”). 9 The same report also appears in the record at AR 4684-4714 under the title “Benthic Macroinvertebrate Report” and a date of August 17, 2008. Of course the August, 2009 report could not have existed in August, 2008. It is unclear whether any separate 2008 report exists.



effort is further “strong evidence of a healthy ecosystem and the slight shifts in

proportions of filtering caddisflies are noteworthy but not of sufficient weight to

undermine the overall classification.” Kelley Decl. at ¶ 9. The public could not

view or comment on the DENR research – it was not even performed until after the

close of public comment on the predecisional EA.

The Forest Service summarized both Ferrell and the DENR studies in the

Final EA. Again, the Final EA mischaracterizes the Ferrell results by claiming they

“suggest that the sedimentation from the OHV activities has altered the aquatic

invertebrate community at the smaller scale….” AR 10714. The Final EA

discussion of the DENR report avoids any suggestion of adverse impacts, instead

correctly stating the 2009 “surveys resulted in an excellent bioclassification for all

streams surveyed.” Id. The discussion then acknowledges that “the aquatic insect

surveys…have indicated there is no difference among the surveyed streams” but

then concludes “aquatic insects are generally poor indicators of ecosystem stress

due to sedimentation.” Id. Further insight to the agency’s analysis is provided in

the “response to comments” dated September, 2009. The Ferrell research is not

mentioned. The DENR survey is mentioned numerous times, and interpreted far

more broadly than in the Final EA to allegedly show “NCDWQ found there was

clearly more sand, embeddedness, and in some cases silt in the streams

adjacent to the OHV system than in the reference streams.” AR 10438; 10491;



10509-10510; 10514; 10545-10546; 10549 (bold in original). Thus, the Forest’s

final position is that aquatic macroinvertebrate data is of limited value in assessing

water quality. See also, AR 10546 (rejecting macroinvertebrate data as an indicator

of good water quality as “spurious”); but see, AR 2121 (Forest hydrologist

observation that macroinvertebrates are “important indicators of water quality”).

The record on aquatic macroinvertebrates epitomizes an agency struggling

on the scientific and procedural roadmap. Results were carefully sought, then

ignored when they failed to support closure. The results relied upon in final

documents were never available to the public during the critical comment period.

The agency stressed the importance of obtaining specific data, then downplayed it

as unimportant to the water quality analysis. All while every assessment of the

sites both within and outside the Upper Tellico watershed demonstrate viable,

functioning ecosystems rated “excellent” on applicable standards.

III. LEGAL STANDARDS

A. Standard of Review on Motions for Summary Judgment

Cases like this are routinely decided on cross-motions for summary

judgment since “summary judgment is the principal tool for eliminating factually

and legally insufficient claims,” and “is a particularly appropriate means of

resolving claims against forest management decisions by the U.S. Forest Service.”

Wilderness Soc’y v. Bosworth, 118 F.Supp.2d 1082, 1089 (D. Mont. 2000).



B. Judicial Review of Final Agency Action

Statutes like NEPA do not provide a private right of action, so judicial

review proceeds under the APA. Ohio Vly. Envt’l Coalition v. Aracoma Coal Co.,

556 F.3d 177, 192 (4th Cir. 2009). The Court shall “hold unlawful and set aside

agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law. . .” 5 U.S.C. §

706(2). This standard must be “searching and careful” but “narrow” and the Court

“is not empowered to substitute its judgment for that of the agency.” Ohio Vly.,

556 F.3d at 192. Review focuses on whether “the agency has provided an

explanation of its decision that includes ‘a rational connection between the facts

found and the choice made’”. Id. (citing Motor Vehicle Mfrs. Ass’n. v. State Farm

Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983)). The standard is deferential

but requires balance, for “unless we make the requirements for administrative

action strict and demanding, expertise, the strength of modern government, can

become a monster which rules with no practical limits on discretion.” Burlington

Truck Lines, Inc. v. United States, 371 U.S. 156, 167 (1962) (quotation omitted).

IV. ARGUMENT

The Forest closed first and analyzed later. This paradigm led to several basic

violations, including shortcutting mandatory NEPA procedures, failing to properly

inform the public at crucial stages of the process, reaching conclusions that were



arbitrary and capricious, and amending the Forest Plan in singleminded pursuit of

closure while arbitrarily failing to consider doing so to support continuation of

System. The Court should declare unlawful and set aside the Decision and other

orders, and provide guidance on remand to the Forest.

A. The Forest Predetermined the Outcome of the Planning Process.

This case presents numerous and fundamental deviations from textbook

NEPA procedures. They reflect and were necessitated by the agency’s fixation on

closing the System regardless of what developed in the NEPA process.

NEPA “is our basic national charter for protection of the environment.” 40

CFR § 1500.1. NEPA does not solely address the physical environment but

mandates steps that must precede federal action which may “significantly affect[ ]

the quality of the human environment….” 42 U.S.C. § 4332(2)(C) (emphasis

added). The “human environment” “shall be interpreted comprehensively to

include the natural and physical environment and the relationship of people with

that environment.” 40 CFR § 1508.14. NEPA is a purely procedural statute

designed to “insure that environmental information is available to public officials

and citizens before decisions are made and before actions are taken.” 40 CFR §

1500.1(b); see Nat’l Audubon Soc’y v. Dept. of the Navy, 422 F.3d 174, 184 (4th

Cir. 2005) (NEPA’s dual purposes include “specifying formal procedures the

agency must follow before taking action” and requiring agency “disseminate



widely” its findings to ensure “that the public and government agencies will be

able to analyze and comment…”) (emphasis added).

NEPA compliance is reviewed under APA 706(2), which focuses on

“whether the agency has taken a ‘hard look’ at an action’s environmental impacts.”

Id. at 185 (citations omitted). “Hard look” is is case-specific and intended to ensure

the agency “rigorously explore[d] and objectively evaluate[d]” reasonable

alternatives and the environmental impacts of the action. Id. at 185-186. Such

review does not allow the Court to “second-guess” substantive agency conclusions,

nor is it a perfunctory “rubber stamp.” Id.

The Forest’s process here is tainted by the unusual decision to eliminate the

use under review before initiating NEPA analysis. The Forest reversed the proper

sequence – rather than evaluating information and making it available to the public

before making a decision, it made a decision and tried to comply with NEPA after

the fact. The Forest tellingly acknowledged the proper sequence but apparently

capitulated to the dissatisfaction expressed by preservationist interests with this

approach. AR 820; 829; 855; 859. Illuminating is Ms. Ferrell statement “[t]he

[Forest Service] has responded to pressures from these environmental groups by

instating a winter closure of the entire park….[and] also permanently closed four

trails.” Ferrell Thesis at 10 (Turcke Decl. Exhibit “A”).



The flawed process is further demonstrated by the skewed definition of

“purpose and need.” An agency cannot unreasonably define the “purpose and

need” of a project so as to make the NEPA process a “foreordained formality.”

Citizens Against Burlington v. Busey, 938 F.2d 190, 196 (D.C.Cir. 1991)). The

agency initially outlined a multi-faceted goal to “[m]aintain a sustainable and

viable OHV system while reducing sediment, meeting water quality standards, and

improving brook trout fisheries.” AR 2037. But the predecisional EA lists the 5-

pronged “parade of horribles” that would come to define the project. AR 5487.

Which foreshadow the Decision that ignores any need to provide for continued use

of the System and addresses previously unstated (and legally incorrect) goals to

“give[ ] us a better chance of meeting the ‘no visible sediment’ standard”, “allow a

better chance…for BMPs to remain functional” and “ensure meeting water quality

standards and support long-term persistence of brook trout.” AR 10624-10625.

The Forest independently violated the regulatory requirement that it not take

action “concerning the proposal” which had “environmental consequences” or

limited the choice of reasonable alternatives. 40 CFR § 1506.1. The central focus is

on whether the “point of commitment” illegally preceded completion of the NEPA

process. Metcalf v. Daley, 214 F.3d 1135, 1142-1143 (9th Cir. 2000). Fatal here is

the Forest Supervisor’s premature announcement of a conclusion – that water

quality impacts are “so significant” as to require closure of the System. AR 5700.



Thus, the agency was irreversibly and irretrievably committed to closure so that

“the EA was slanted in favor of finding that [closure] would not significantly affect

the environment.” Id. at 1144.

The integrity of NEPA and agency governance turns on procedural integrity.

The Court should declare unlawful the Forest’s “close first then study” process.

B. The Forest Violated NEPA’s Procedural Requirements.

The Forest committed a textbook violation of mandatory NEPA procedure

by relying heavily on information that was not made available to the public.

NEPA requires an agency to meaningfully engage the public before

decisions are made. Nat’l Audubon Soc’y, 422 F.3d at 184; National Parks &

Conservation Ass’n v. U.S. Dept. of Transp., 222 F.3d 677, 680 (9th Cir. 2000)

(proper process is on which “fostered informed decision-making and public

participation.”). The agency must “insure professional integrity” of NEPA

documents to include disclosing methodology, presenting hard data and making

“explicit reference” to sources relied upon. 40 CFR § 1502.24. Incorporation be

reference can be proper if the material relied upon is “reasonably available for

inspection by potentially interested persons within the time allowed for comment.”

40 CFR § 1502.21.

This process here violated these requirements. The Ferrell thesis was cited in

the EAs but was not even included in the references cited section of any EA. More



egregiously, the DENR study was not sought until after it became apparent that

existing results on macroinvertebrates, including Ferrell, would not provide the

factual basis desired by the Forest. The DENR was not conceived, let alone

completed, prior to close of the public comment period. Nor can the Forest

downplay the error as inadvertent or harmless, for the importance of the DENR

study is demonstrated by the repeated (yet erroneous) reliance on it in the agency’s

response to comments. AR AR 10438; 10491; 10509-10510; 10514; 10545-10546;

10549.

Key components of the agency’s scientific portfolio were never made

available for public review and comment. This violated NEPA procedures

rendering the agency’s decision arbitrary and capricious.

C. An Environmental Impact Statement was Required.

The Forest deviated from typical agency practice and violated NEPA by

relying on an EA rather than the more rigorous EIS process.

An agency faces procedural choices in complying with NEPA, including

whether the project may be a “major federal action[ ] significantly affecting the

quality of the human environment.” 42 U.S.C. § 4332(2)(C). An EA can determine

“how significant the environmental effects of a proposed action will be” which will

help the agency choose between conducting an EIS or issuing a FONSI. Ohio Vly.,

556 F.3d at 191. An EIS is required if significance is even a close call and “a



plaintiff need not show that significant effects will in fact occur, [but] raising

substantial questions whether a project may have a significant effect is sufficient.”

Ocean Advocates v. U.S. Army Corps of Eng’rs., 402 F.3d 846, 864–65 (9th Cir.

2005) (quotations omitted, emphasis in original).

Whether there may be a significant effect on the environment requires

consideration of two broad factors: “context and intensity.” See 40 CFR § 1508.27;

42 U.S.C. § 4332(2)(C). Context refers to the setting in which the proposed action

takes place. 40 CFR. § 1508.27(a). Intensity means “the severity of the impact.” Id.

at § 1508.27(b). The regulations include ten “intensity,” factors that courts may

consider, any one of which is sufficient to trigger an EIS. Ocean Advocates v. U.S.

Army Corps of Eng’rs., 402 F.3d at 865. An agency must meaningfully analyze

these factors. Sierra Club v. Bosworth, 510 F.3d 1016, 1027-1028 (9th Cir. 2007);

Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, 811 (9th Cir. 1999)

(rejecting “very broad and general statements devoid of specific, reasoned

conclusions” or statements that “fall short of a ‘useful analysis’”). Finally, the

degree of impact is independent from whether the impact is beneficial or adverse -

rather, “[a] significant effect may exist even if the Federal agency believes that on

balance the effect will be beneficial.” 40 C.F.R. § 1508.27(b)(1).

The Decision runs afoul of these principles. It only attempts a conclusory

run through the checklist. AR 10626-10628. The Forest simply characterizes each



inquiry and offers a conclusion to each supporting “non-significance.” As such, the

Decision is a catalogue of agency conclusions rather than a window into the

agency’s analytical process. The discussion offered, such as on “controversy”, is

inadequate. The Decision actually analyzes “controversy” in the colloquial sense,

instead of the relevant focus on whether the outcome will be uncertain. Here there

is great uncertainty, epitomized by the inconclusive and mischaracterized findings

on macroinvertebrates.

Almost hidden in the agency analysis is consideration of the effects

associated with “rehabilitation” of the closed routes. Such efforts, also called

“decommissioning”, can involve installation of new culverts, removal of others,

and grading, recontouring with heavy equipment to eliminate the road prism and

restore “natural” conditions. AR 10702. The EA predicts there “may be a short-

term (approximately 2 days…) increase in sedimentation and turbidity…”

associated with such efforts. AR 10702. The EA grossly understates these impacts.

The decommissioning effort is still ongoing. In fact, DENR recently sent the Forest

a Notice of Violation stating that site inspections reveal land disturbing actions

involving an area greater than one acre have occurred without possessing an

approved sediment and erosion control plan. Notice of Violations dated March 29,

2011 (Turcke Decl., Exhibit “B”). The agency has failed to adequately predict or

discuss these effects to the environment.



Finally, the agency is caught in a procedural trap of its own creation. On the

one hand the agency claims that elimination of the System is urgently needed. So

much so that “temporary” and “emergency” closures were required extending over

several years even before planning was undertaken. Elimination of the System and

“rehabilitation” of the closed routes would presumably then have great benefit. But

the significance requirement applies to both beneficial and adverse effects. The

agency cannot be right in asserting the closure was so urgently needed as to

precede thorough analysis, while also being right that effects were sufficiently

minor to justify conducting an EA.

D. Agency Conclusions were Arbitrary and Capricious.

Fundamental elements of the agency’s decision violated the arbitrary and

capricious standard by relying on erroneous interpretation of the underlying legal

standard. These include: (a) the determination that water quality standards were

being violated; (b) the determination that a “no visible sediment” standard applied;

and (c) the Forest Supervisor’s reliance on a subjective “all I can do” mandate to

reduce sedimentation.

An agency violates the “arbitrary and capricious” standard when it abuses its

discretion. 5 U.S.C. § 706(2)(A). In the judicial context, an abuse of discretion

occurs when a trial court adopts an incorrect legal rule. In Re New Motor Vehicles

Canadian Export Antitrust Litigation, 522 F.3d 6, 17 (1st Cir. 2008); Brazos River



Authority v. GE Ionics, 469 F.3d 416, 423 n.1 (5th Cir. 2006); U.S. v. Roxworthy,

457 F.3d 590, 592-593 (6th Cir. 2006); Enyart v. Nat’l Conf. of Bar Examiners, 630

F.3d 1153, 1159 (9th Cir. 2011). Applied to this context, the Forest cannot properly

exercise discretion if it bases its conclusion on an incorrect legal rule.

The entire project flowed from the determination that state water quality

standards were being violated. See, AR 5489 (predecisional EA); AR 10645 (final

EA). This conclusion is erroneous as a matter of law, because the Forest has failed

to even consider the analysis dictated by the applicable standard. Correctly

outlined, the standard requires: (1) turbidity not exceed 10 NTU; (2) except when

due to natural background conditions, in which case “the existing turbidity level

shall not be increased”; (3) compliance occurs when “land management activities”

employ BMPs which are in “full compliance” with specifications. AR 10681 (15A

NCAC 02B .0211 (3)(k)). However, the Forest omits necessary steps in this

analysis, stating only that values exceeding the 10 NTU threshold have been

obtained during “storm events.” AR 10619 (and citing final EA, Ch. 3.1.1); AR

10683 (final EA, simplistically and erroneously stating “values greater than 10

NTU do not meet North Carolina water quality standards for trout waters”).

Nowhere does the record document the necessary analysis to determine whether

existing turbidity has been increased when background conditions reflect values

exceeding 10 NTU. More revealing is the fact that the state agencies charged with



determining compliance with the standard find the Tellico River (and reference

streams) to support all protected uses, even under the more demanding “trout

waters” standard. AR 10667-10668.

Similarly, the Forest relied on an erroneous “no visible sediment” standard

to justify total closure of the System. AR 10624. The “no visible sediment”

language arises from the North Carolina Forest Practices Guidelines. See AR 2406;

AR 10499 (“The Forest Plan defers to NC Forest Practices and Guidelines (FPG)

to protect Water Quality.”). Even the Forest has questioned whether the standard is

enforceable here. AR 2406 (characterizing “no visible sediment” language as

“General Direction (NOT a standard)” (caps in original). The “visible sediment”

language at most applies to a “streamside management zone” (SMZ) which is a

narrow area of “extra precaution”. 15A NCAC 01I .0201; AR 10519-10520 (citing

FPG and stating agency considered 25 feet the applicable “buffer width”). Thus, to

the extent the FPG “no visible sediment” requirement controlled, it only addresses

the 1.0 miles of routes within the 25 foot SMZ, not the entire System. See, AR

9985. Further, the FPG are only guidelines which have legal consequence only for

“land-disturbing activity undertaken on forestland for the production and

harvesting of timber and timber products….” Sedimentation Pollution Control Act,

NCGS § 113A-52.1(b). The Decision relies on a mandatory “no visible sediment”



requirement which is erroneous as a matter of law and cannot justify closure of the

entire System.

The final erroneous legal rule driving the Decision is the subjective belief

that the Forest Supervisor has “an obligation as a land manager to do all I can do to

reduce the human induced sedimentation from Trail 2 through 12…[to] help ensure

meeting water quality standards and support long-term persistence of brook

trout….” AR 10625. None of the governing agencies have found water quality

standards to be violated. No one has legitimately suggested brook trout are

threatened or “nonpersistent” in the watershed. The Forest Supervisor faces an

obligation to manage for multiple use. See, 36 CFR 212.55 (2007) (outlining

detailed criteria for designation of roads, trails and areas for motor vehicle use).

Instead, the Decision reflects blind allegiance to preservation.

A decisionmaker shooting at a legally-incorrect target abuses her discretion

when she hits it. On multiple and critical inquiries the Forest simply got the

governing standard wrong. This constitutes abuse of discretion. The Court should

grant the Recreation Groups’ motion.

E. The Agency Violated Plan Amendment Requirements.

The Forest’s arbitrary behavior is further illustrated by its inconsistency in

amending the Forest Plan. The decision to close turned on two key decisions: (1)

amending the Forest Plan to eliminate the direction to provide “recreational riding



opportunities” at the System; and (2) failing to consider amending the “no visible

sediment” standard. The Forest used improper procedures in adopting the former

and irrationally failed to consider the latter.

The agency must make clear findings on four (4) required elements to

amend the Plan. Lands Council v. Martin, 529 F.3d 1219, 1227-1228 (9th Cir.

2008). The Final EA acknowledges the Forest Plan’s direction to “provide

recreational riding opportunities” at the System. AR 10654. The Decision

recognized that closure could not be deemed “consistent” with the Plan, and

appropriately sought to amend the Plan. AR 10626. However, only two (2)

findings are attempted. The failure to even discuss the requisite four (4) elements

violates the arbitrary and capricious standard. Sierra Club v. Jacobs, 2005 WL

6247793 at *14 (S.D.Tex. 2005).

Similarly, the agency failed to acknowledge the possibility of amending the

“no visible sediment” standard. That standard is repeatedly cast as a mandatory

requirement forcing closure as the only realistic option. AR 10618; AR 10624.

However, the “proposed action” which would have emphasized active

management of the System failed to even include amendment of the “no visible

sediment” language. See, AR 10653. The “arbitrary and capricious” standard

includes agency behavior “short of statutory right.” 5 U.S.C. § 706(2)(C). Such an

amendment seems particularly appropriate, and the Forest Plan language



questionable, when one considers it arises from the narrow and inapplicable Forest

Practices guideline. See, supra at 33-34. The “no visible sediment” standard could

be applied to prohibit virtually any activity on the Forest. See, AR 10496-10497

(stating that fisherman traveling on foot “can trample vegetation and expose bare

mineral soil to erosion” and “disturb deposited sediment”). The agency arbitrarily

relied on an unattainable standard as an excuse to close the System.

V. CONCLUSION

For the foregoing reasons, the Court should grant Plaintiffs’ motion for

summary judgment, declare unlawful and set aside the various actions closing the

System, and conduct additional proceedings to fully determine the appropriate

remedy.

Respectfully submitted this 16th day of May, 2011. Paul A. Turcke s/ Paul A. Turcke Moore Smith Buxton & Turcke, Chartered Idaho Bar Number 4759 950 West Bannock Street, Suite 520 Boise, Idaho 83702 Phone: 208-331-1800 Fax: 208-331-1202 [email protected] David Michael Harmon s/ David Michael Harmon York Williams & Lewis, L.L.P. N.C. Bar Number 28395 PO Box 36858 Charlotte, NC 28236 [email protected] Counsel for the Plaintiffs


mailto:[email protected]



CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of the foregoing by the court’s ECF mail notification system, which will provide notice to all parties through counsel of record in this matter: Paul Taylor [email protected] Austin D.J. Gerken [email protected] Dated this 16th day of May, 2011. s/ Paul A. Turcke Paul A. Turcke Moore Smith Buxton & Turcke, Chartered Idaho Bar Number 4759 950 West Bannock Street, Suite 520 Boise, Idaho 83702 Phone: 208-331-1800 Fax: 208-331-1202 [email protected]





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