RUBICON/El Dorado Nation Forest.. Actuall lawsuit!! [Archive]

IMUZ ME

02-23-2002, 08:08 AM

Someone help me out in the title! I have been up now for 22 hours and need to go to bed! Just got done on some serious OT!!

This is very long, but it lists everything! A little birdy e-mailed me a copy of the actual lawsuit filed!! :D It is in pdf format and didn't copy over very cleanly! :( So if you want me to forward you a copy hit me up at: jd808@aol.com. I would be happy to forward you the file! Could I get a STICKY please!!

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
LAW OFFICE OF
J. WILLIAM YEATES
8002 CALIFORNIA AVE.
FAIR OAKS, CA 95628
PRINTED ON RECYCLED PAPER
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
CENTER FOR SIERRA NEVADA CONSERVATION, a non-profit corporation, CENTER FOR BIOLOGICAL DIVERSITY, a non-profit corporation, and CALIFORNIA WILDERNESS COALITION, a non-profit corporation.
Plaintiffs,
vs.
JOHN BERRY, in his official capacity as Forest Supervisor for the Eldorado National Forest; JACK BLACKWELL, in his official capacity as Regional Forester for Region Five, U.S. Forest Service; UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture,
Defendants.
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
CASE NO.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
J. WILLIAM YEATES, SBN 084343 MARY U. AKENS, SBN 201435 KEITH G. WAGNER, SBN 210042 LAW OFFICE OF J. WILLIAM YEATES 8002 California Ave. Fair Oaks, CA 95628 Phone: (916) 860-2000 Fax: (916) 860-2014
RONNI M. FLANNERY, ESQ. applicant for admission pro hac vice 410 West Sussex Missoula, MT 59801 Phone: (406) 543-7610
Attorneys for Plaintiffs: CENTER FOR SIERRA NEVADA CONSERVATION, CENTER FOR BIOLOGICAL DIVERSITY, and CALIFORNIA WILDERNESS COALITION.

The Plaintiffs, Center for Sierra Nevada Conservation (CSNC), Center for Biological
Diversity (CBD), and the California Wilderness Coalition (CWC), each non-profit corporations,
in this complaint against Defendants John Berry, in his official capacity as Forest Supervisor for
the Eldorado National Forest, Jack Blackwell, in his official capacity as Regional Forester for
Region Five, and the United States Forest Service, an agency of the U.S. Department of
Agriculture, (collectively USFS or “Forest Service”), allege as follows:
PRELIMINARY STATEMENT
1. This is an action for a declaratory judgment and injunctive relief. Plaintiffs challenge
several related actions and failures to act by the USFS concerning off-road vehicle management
in the Eldorado National Forest (ENF or “Forest”), including: (1) the adoption and
implementation of a 1990 Eldorado National Forest Off Highway Vehicle and Trail Management
Plan without analyzing the Plan’s environmental impacts; (2) the failure to enforce formally
adopted Forest Plan prohibitions on off-road vehicle (“ORV”) use within certain areas of the
Forest; (3) the adoption and implementation of the Rock Creek Recreational Trails Plan without
adequately analyzing the Plan’s cumulative effects, without following the procedures established
by applicable ORV route designation requirements, and without complying with the Forest Plan;
and, (4) the improper pattern and practice of using categorical exclusions to exempt various
ORV trail maintenance projects and other ORV activities from required environmental review.
2. This action arises under and alleges violations of the National Environmental Policy
Act (NEPA), 42 U.S.C. § 4331 et seq., the National Forest Management Act (NFMA), 16 U.S.C.
§ 1600, et seq., the Administrative Procedure Act (APA), 5 U.S.C. § 500, et seq., Executive
Order 11644, as amended, and Federal Regulations.
3. Forest ORV Plan. In this Complaint, Plaintiffs seek this Court’s declaration that the
Defendants’ decision to adopt and implement the 1990 Eldorado National Forest Off Highway
Vehicle and Trail Management Plan (Forest ORV Plan) violates NEPA, the APA, and a
mandatory 1995 directive by the Chief of the USFS that supplemental environmental analysis
under NEPA be prepared for the Plan by May, 1997. Plaintiffs additionally seek an order
enjoining Defendants from allowing any further ORV recreational or maintenance activities in

the Eldorado National Forest under the 1990 Forest ORV Plan until the USFS-mandated NEPA
analysis is completed.
4. Forest Plan Directive. Plaintiffs seek this Court’s declaration that Defendants have
failed to enforce a mandatory directive contained in the Eldorado National Forest Land and
Resource Management Plan (LRMP or “Forest Plan”) requiring removal or relocation of ORV
trails located near certain California spotted owl habitats in the Forest. Plaintiffs further seek
this Court’s declaration that the USFS’ failure to enforce these provisions of the Forest Plan
violates NFMA and the APA. Plaintiffs seek an order enjoining the USFS from permitting any
motorized activities within certain spotted owl protected areas (as delineated in the Forest Plan,
as amended) until it fully complies with the Forest Plan.
5. Rock Creek Trails Plan. Plaintiffs seek this Court’s declaration that Defendants'
decision to adopt the Rock Creek Recreational Trails Plan (hereinafter “Rock Creek Trails
Plan”) is arbitrary and capricious because: (1) the court-ordered EIS that Defendants prepared
for the Rock Creek Trails Plan does not adequately consider the cumulative impacts of allowing
ORV use in the Rock Creek area; (2) the Defendants failed to comply with mandatory federal
regulations in designating ORV routes under the Rock Creek Trails Plan; and (3) the Defendants,
in designating ORV routes under the Rock Creek Trails Plan, failed to comply with the Eldorado
National Forest Plan’s mandatory directive requiring removal or relocation of ORV trails located
near identified California spotted owl habitats. Plaintiffs seek an order enjoining Defendants
from allowing any ORV recreation or maintenance activities in the Rock Creek area of the
Eldorado National Forest until: (1) the USFS designates ORV routes for the Rock Creek area
under the mandatory procedures set forth in the Forest Service’s regulations; (2) the court-
ordered EIS is supplemented with an adequate cumulative impacts analysis; and (3) the USFS
complies with the Forest Plan by relocating or removing trails near identified California spotted
owl habitat.
6. Categorical Exclusions for Off-Road Vehicle Projects. Plaintiffs finally seek this
Court’s declaration that the Forest Service’s repeated use of categorical exclusions to exempt
off-road vehicle trail maintenance and other ORV activities from required environmental review

is arbitrary and capricious and otherwise not in accordance with law. Defendant’s pattern and
practice of using categorical exclusions violate both NEPA and the APA because, among other
things, extraordinary circumstance exist that preclude the use of categorical exclusions to evade
NEPA review. Plaintiffs seek an order enjoining Defendants from engaging in any further ORV
route maintenance and other ORV projects when extraordinary circumstances exist without first
preparing an environmental assessment or environmental impact statement in compliance with
NEPA.
JURISDICTION AND VENUE
7. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (action
arising under the laws of the United States), and the Administrative Procedure Act, 5 U.S.C. 701
et seq. (judicial review of agency actions). This Court may issue a declaratory judgment and
further relief pursuant to 28 U.S.C. §§ 2201 and 2202. Mandamus may lie pursuant to 28 U.S.C.
§ 1361. There is a real, present and continuing controversy between the parties. In addition, the
Plaintiffs may not have an adequate remedy at law, and injunctive relief may be appropriate.
8. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because the Forest
Service resides in this district.
PARTIES
9. Plaintiff Center for Sierra Nevada Conservation (CSNC) – formerly known as Friends
Aware of Wildlife Needs (FAWN) – is a non-profit corporation organized in 1986 and
headquartered in Georgetown, California. CSNC and its members have a long-standing interest
in protecting the biodiversity, wildlands, ecosystem values, and long-term sustainability of
natural resources on private and public lands in the vicinity of the Eldorado National Forest. The
CSNC and its members regularly use and will continue to use the trails and other areas within
the Eldorado National Forest – including the specific trails and adjacent areas at issue in this
Complaint – for recreational and aesthetic pursuits, including, but not limited to, fishing, hiking,
hunting, wildlife appreciation, nature observation, photography, aesthetic enjoyment, and
spiritual rejuvenation.

10. Plaintiff Center for Biological Diversity (CBD) is a non-profit corporation dedicated
to the preservation, protection, and restoration of biodiversity, native species, ecosystems, and
public lands. CBD maintains an office in Berkeley, California. CBD has approximately 6,000
members, many of whom reside in California. CBD's members and staff regularly use lands
throughout the Sierra Nevada, including the Eldorado National Forest, for observation, research,
aesthetic enjoyment, and other recreational, scientific, and educational activities. CBD's
members and staff have researched, studied, observed, and sought protection for many federally
listed threatened and endangered species that live in the Sierra Nevada, including the Eldorado
National Forest. CBD's members and staff have and continue to derive scientific, recreational,
conservation, and aesthetic benefits from these rare species existence in the wild.
11. Plaintiff California Wilderness Coalition (CWC) is a statewide coalition of
organizations, businesses, and individual members working together to defend the pristine
landscapes that make California unique, provide a home to our wildlife, and preserve a place for
spiritual renewal. Since 1976, through advocacy and public education, CWC has enlisted the
support of citizens and policy-makers in its efforts to preserve California's wildlands. Over the
past 25 years, CWC has played an instrumental role in the designation of over 100 federal
wilderness areas in California including such well-known wilderness areas as Ansel Adams,
Death Valley, Trinity-Alps, and Mount Shasta. CWC has maintained a long-term interest in the
management of the Eldorado National Forest. CWC advocated for the designation of the
Mokelumne Wilderness Area, as well as additions to the Mokelumne and Desolation Wilderness
Areas. CWC has also been involved in management of forest resources for the past two decades,
and has argued for improvements to the Land and Resource Management Plan. Many CWC
members reside or recreate within the Eldorado National Forest. CWC’s members enjoy hiking,
backpacking, hunting, fishing, swimming, bird watching, and camping within the forest. Many
of these members have been involved in forest management issues as well and have written
letters, attended hearings, and voiced concerns about off-road vehicle management in the
Eldorado National Forest.

12. This suit is brought by CSNC, CBD and CWC on behalf of themselves and their
adversely affected members and staff (collectively Plaintiffs). Plaintiffs and their members’
present and future use of the Eldorado National Forest is directly and adversely affected by the
decisions, actions, and failures to act alleged in this Complaint. Those adverse effects include,
but are not limited to: (1) disruption of their recreation experiences; (2) reduction and
impairment of recreation opportunities; and (3) impaired aesthetic value of trails and other areas
caused by USFS’ malfeasance and nonfeasance in “managing” ORV use in the Eldorado
National Forest. The ongoing injuries caused by Defendant’s failure to follow mandatory
procedures in designating and reviewing ORV routes include, but are not limited to, increased
noise and air pollution in the Eldorado National Forest and surrounding environs, degradation
and impairment of the Forest landscape, disruption of wildlife, increased user conflicts, and loss
of opportunities for solitude and nature appreciation. In addition, Plaintiffs and their members
have an interest in ensuring that the Forest Service complies with all applicable laws,
regulations, and procedures pertaining to the management of public lands.
13. Defendant John Berry is the Forest Supervisor for the Eldorado National Forest. In
that capacity, he is directly responsible for properly managing vehicle and trail use in the Forest
and ensuring that ORV route designation and use in the Forest complies with the Eldorado
Forest Plan and all other applicable laws. He officially resides in Placerville, California.
Defendant Berry is sued in his official capacity.
14. Defendant Jack Blackwell is the Regional Forester for Region 5 (Pacific Southwest
Region) of the National Forest System, which includes the Eldorado National Forest. In that
capacity, he is and/or his predecessor(s) were responsible for managing and preserving the
national forests in Region Five, including the Eldorado National Forest. He officially resides in
Vallejo, California. Defendant Blackwell is sued in his official capacity.
15. Defendant USFS is the agency within the U.S. Department of Agriculture directly
responsible for carrying out the Department’s obligations under statutes, regulations, and
Executive Orders governing ORV trail designation and use in the Eldorado National Forest.

STATEMENT OF THE FACTS
I. THE AFFECTED ENVIRONMENT
16. The Eldorado National Forest (ENF or Forest), located in the heart of the Sierra
Nevada mountain range, is situated in central California, east of Sacramento and west of Lake
Tahoe. Parts of Alpine, Amador, Eldorado, and Placer Counties lie within the ENF. The Forest
contains a total of over 786,000 acres of forestlands of diverse topography, soil type, vegetation,
and habitat type.
17. Located within the ENF are two federally-designated wilderness areas – the
Desolation and Mokelumne Wilderness Areas.
18. The Forest also provides habitat for numerous endangered, threatened, and sensitive
wildlife species, species of concern, and management indicator species, including the Bald eagle,
California red-legged frog, California spotted owl, Great gray owl, Northern goshawk, Willow
flycatcher, Pacific fisher, American marten, Sierra Nevada red fox, California wolverine,
Foothill yellow-legged frog, Mountain yellow-legged frog, Northwestern pond turtle, Yosemite
toad, Mule deer, and assorted species of trout. A variety of listed plant species can likewise be
found within the Eldorado National Forest. Portions of the Forest lie within the designated
critical habitat of the California red-legged frog. The Forest also includes portions of the Pacific
Deer Herd winter range, including critical winter range.
19. The elevation of the ENF ranges from 1,000 feet in the foothills to more than 10,000
feet above sea level along the Sierra crest. The mountainous topography is broken by steep
canyons of the Mokelumne, Consumnes, American, and Rubicon Rivers. Plateaus of generally
moderate relief are located between these steep canyons.
20. Besides varying greatly in topography, the Forest contains extremely diverse soils
and vegetation types. Studies have been conducted to analyze the erosion hazard for soils in
parts of the Forest. For example, within the Rock Creek Area, 12% of the acreage in the area is
given a “very high” erosion hazard rating. Thirty-eight percent is assigned a “high” erosion
hazard rating.

21. The Forest is a popular area for a wide range of recreational uses. Used by motorized
recreationists year-round, the Forest contains hundreds of miles of roads and trails open to ORV
use. A variety of nonmotorized recreation activities compete with ORV use in the Forest,
including hiking, horseback riding, mountain bike riding, hunting, and fishing.
II. OFF-ROAD VEHICLE IMPACTS ON PUBLIC RESOURCES
22. As used in this Complaint, “off-road vehicle” or “ORV” is the generic term used to
describe motorized vehicles equipped for travel off of improved and maintained roads. Such
vehicles include high-clearance jeeps and trucks, cross-country motorcycles, dune buggies,
snowmobiles, and all-terrain vehicles or “ATVs.”
23. ORV’s have significant, negative impacts on practically every aspect of the natural
environment wherever they are used. ORV’s degrade air and water quality; impair others’
ability to enjoy natural sights, sounds and smells; and create safety hazards – for ORV users
themselves and others. When used in natural areas that cannot sustain their impacts, ORVs
damage soils and vegetation; harm wildlife and wildlife habitat; degrade water quality and
riparian health; and harm cultural resources. Former Deputy Chief of the USFS James R.
Furnish, upon his departure from the Forest Service last year, described off-road vehicles as a
“systemic blight” on the public lands, and advised the agency to properly manage off-road
vehicle activities lest the issue “drag the Forest Service into litigation gridlock.”
24. The ENF is comprised of four (4) ranger districts. They include the Amador,
Georgetown, Pacific, and Placerville ranger districts. Within the four (4) ranger districts across
the Forest, there are sixteen (16) established off-road vehicle areas. Within the Amador Ranger
District are the Squaw Ridge/Onion Valley, North Bear River Reservoir, Middle Fork
Consumnes River, Deer Valley, Schnieder Cow Camp, and Gold Note/Elkins ORV areas.
Within the Georgetown Ranger District are the Rock Creek and Hunter Trails ORV areas.
Within the Pacific Ranger District are the Barrett Lake/Wrights Lake, Bassi, North Union Valley
Reservoir, and Rubicon/Loon Lake ORV areas. Within the Placerville Ranger District are the
Long Canyon 4WD Trail, Strawberry 4WD Trail, Hay Flat, and Caples Creek ORV areas.

25. In 1990, the Forest Service adopted the Eldorado National Forest OHV and Trail
Management Plan (“Forest ORV Plan”), to guide and manage ORV use in the ENF. The Forest
ORV Plan designates hundreds of miles of ORV routes.
26. Despite the significant environmental impacts associated with designating and
maintaining ORV trails across the ENF for year-round use, the USFS has never conducted any
forestwide environmental analysis of the 1990 Forest ORV Plan.
27. Only one of the ENF’s sixteen (16) ORV areas – the Rock Creek ORV area – has
ever been subject to environmental analysis under NEPA. The Rock Creek Trails Plan EIS was
undertaken by USFS only after CSNC sued and won in federal court, demanding that the EIS be
prepared. Even though it was prepared under court order, the Rock Creek Trails Plan EIS still
fails to adequately analyze cumulative impacts associated with ORV use in the Rock Creek area.
III. LEGAL FRAMEWORK FOR MANAGEMENT OF ORVS ON PUBLIC LANDS
28. Travel management on recreation system trails in the national forests is governed by
the forest planning requirements of the National Forest Management Act, 16 U.S.C. § 1600, et
seq., as well as by formally adopted federal regulations.
29. At all relevant times herein, the Forest Planning regulations that implement NFMA
required that:
[t]o the degree consistent with needs and demands for all major resources, a broad spectrum of forest and rangeland related outdoor recreation opportunities shall be provided for in each alternative. Planning activities to achieve this shall be in accordance with national and regional direction and procedural requirements of paragraphs (a) through (g) of this section.
36 C.F.R. § 219.21.
30. These regulations further provided that:
[o]ff-road vehicle use shall be planned and implemented to protect land and other resources, promote public safety, and minimize conflicts with other uses of the National Forest System lands. Forest Planning shall evaluate the potential effects of vehicle use off roads and, on the basis of the requirements of 36 C.F.R. Part 295 of this chapter, classify areas and trails of National Forest System lands as to whether or not off-road vehicle use may be permitted.
36 C.F.R. § 219.21(g).

31. In 1978, the U.S. Forest Service at 36 C.F.R. Part 295 issued regulations specifically
governing the use of ORVs on National Forest System lands. These regulations provide in part
that: “[o]n National Forest System lands, the continuing land management planning process will
be used to allow, restrict, or prohibit use by specific vehicle types off roads.” 36 C.F.R. §
295.2(a). In making planning decisions regarding ORV use in the National Forests, the Forest
Service is to analyze “current and potential impacts” of ORV use on “soil, water, vegetation, fish
and wildlife, forest visitors, and cultural and historic resources.” Id.
32. These federal regulations further require that the Forest Service designate ORV trails
to minimize damage to soils, watersheds, and other resources; to minimize disruption of wildlife
and their habitat; and to minimize conflicts with other recreational uses. See 36 C.F.R. §
295.2(b)(1)-(4).
33. The USFS’ regulations also require that the Forest Service provide public notice and
allow for public involvement in designating or revising use of trails and off-road areas. See 36
C.F.R. § 295.3.
34. The Forest Service is required to monitor ORV use on national forest lands. If such
monitoring reveals considerable adverse effects to other resources, the Forest Service must close
or restrict use until the problem is resolved to prevent recurrence. See 36 C.F.R. § 295.5.
35. The Forest Service’s ORV trail designation and use regulations were enacted through
formal notice-and-comment rule making procedures, and codify and clarify two earlier
Executive Orders designed to control and minimize the adverse effects of ORV use on public
lands. Executive Order 11644, signed by President Nixon in 1972, required federal agencies –
including the Forest Service – to designate trails for ORV use in limited areas; to mark areas and
trails open to ORV use; to provide the public with maps depicting such classifications and
designations; to minimize the effects of ORV use on specifically identified natural resources;
and to monitor ORV impacts on public lands. Five years later, in 1977, President Carter signed
Executive Order 11989, giving federal agencies additional direction and authority to control
ORV use on public lands. Executive Order 11989 empowered federal agencies to adopt a

"closed, unless signed open" policy for ORV use, and to immediately close to ORV use public
lands suffering from ORV damage.
IV. THE ENF’S LONG ADMINISTRATIVE HISTORY OF ORV MISMANAGEMENT
A. The 1989 Forest Plan
i. 1989 - Adoption of Forest Plan
36. On or about January 6, 1989, Paul F. Barker, the Regional Forester for the Pacific
Southwest Region of the USFS, signed a Record of Decision (“ROD”) approving the Eldorado
National Forest Land and Resource Management Plan (LRMP or “Forest Plan”). An
accompanying programmatic Final Environmental Impact Statement (“FEIS”) was prepared to
analyze the environmental impacts of the Forest Plan.
37. Among other things, the Forest Plan contains management policies, standards, and
guidelines for ORV use within the Forest. The overall management direction in the Forest Plan
is to restrict ORV use in the Eldorado National Forest to designated roads and trails on a
majority of the Forest.
38. The Forest Plan’s management direction to restrict ORVs to designated routes is not
self-executing. Rather, the Forest Plan contemplates the subsequent development of a forestwide
ORV plan to implement the Forest Plan’s ORV management directives. The Forest Plan
provides that:
Implementation of a new Forest ORV Plan, in 1990, will result in ORV use being restricted, almost exclusively, to a designated roads and trails system. Acres open for ORV’s (sic), other than trails, will be significantly reduced. Extensive trail construction and reconstruction is proposed.
Forest Plan at 2-8. The Forest Plan further provides that:
An OHV and Trail Management Plan for the Forest will be developed to establish a coordinated trail system, including trailheads, for all motorized and non- motorized uses. . . . After 1/1/90 only those routes designated in the new Forest OHV and Trail Management Plan will be open for greensticker ORV use.
Forest Plan at 4-83.
39. The Forest Plan establishes standards and guidelines regarding ORV use, in part, to
protect and maintain the Forest’s threatened, endangered, and sensitive species. For example, to
protect the California spotted owl – designated a “sensitive” species by the Forest Service – and

its habitat, the Forest Plan imposes upon the USFS the following mandatory duty: “Do not allow
construction of ORV trails within the spotted owl core areas. Existing trails will be rerouted to
be outside the core area unless determined through a biological evaluation, that the existing use
is not an impact.” See Forest Plan at 4-212.
40. There is very little scientific evidence documenting the direct and indirect impacts of
motorized recreation on the California spotted owl. However, scientific literature on raptors in
general strongly indicates that disturbance to nests can result in reduced nesting success and
thereby directly affect species viability. Forest Service biologists have articulated concerns
regarding the impacts that ORV activities may have on breeding and foraging success of
California spotted owls.
41. Under the Forest Plan, thirty-two Spotted Owl Habitat Areas (SOHAs) comprise the
Spotted Owl Management Area within the Forest. Each of the SOHAs includes a spotted owl
“core area.” The Forest Plan defines a spotted owl “core area” to consist of 300 acres of
contiguous habitat within which a nest or suspected nest is found. Forest Plan at 4-211.
42. In 1993, the Forest Plan was amended to incorporate Regional Interim Guidelines for
spotted owl management. See California Spotted Owl Sierran Province Interim Guidelines
Environmental Assessment (USDA Forest Service 1993). The Interim Guidelines are based
upon information contained in The California Spotted Owl: A Technical Assessment of Its
Current Status (Verner, et al., 1992). The amended Forest Plan retained its protections of
SOHAs and “core areas,” but also established a new category of spotted owl habitat: protected
activity centers (PACs). PACs were established in response to studies and literature concluding
that the SOHA network was insufficient to maintain the viability of the California spotted owl as
directed by NFMA and the Forest Plan. PACs are 300 acres of habitat surrounding each known
owl site identified in the Forest between 1987 and 1992. Unlike the SOHA “core areas” in the
original Forest Plan, the existence of a PAC does not depend on whether the nest is located in a
recognized SOHA.
43. The Interim Guidelines did not establish management standards or guidelines for
recreation management within PACs. Therefore, subsequent to the adoption of the Interim

Guidelines, Forest Plan’s standards and guidelines for the removal and relocation of ORV routes
applied equally to PACs and SOHA core areas alike. See Rock Creek Recreational Trails Final
EIS (RDEIS, with minor changes) at 1-5.
44. In 2001, the Forest Plan was amended to incorporate the Sierra Nevada Forest Plan
Amendment (SNFPA). See Sierra Nevada Forest Plan Amendment EIS and Record of Decision
(USDA Forest Service 2001) (SNFPA). With respect to the California spotted owl, the SNFPA,
among other things, protects existing PACs, establishes additional PACs, designates a network
of “old forest emphasis areas”, and reviews and adjusts home range “core areas.”
45. The SNFPA, like the Interim Guidelines, does not establish management standards
and guidelines for motorized recreation activities within PACs or core areas. Rather, the SNFPA
amends portions of ten individual LRMPs – including the Eldorado Forest Plan – with additional
management direction/goals, desired future conditions, standards and guidelines, and adaptive
management strategies related to five specific problem areas, none of which includes motorized
recreation management within PACs or core areas.
46. According to the Regional Foresters for both the Pacific Southwest Region and the
Intermountain Region of the USFS, “[t]he California spotted owl population in the Sierra
Nevada is in decline.” Record of Decision for the Sierra Nevada Forest Plan Amendment
Environmental Impact Statement at 38.
47. A recent ORV operations and maintenance grant application submitted to the
California Department of Parks and Recreation, OHV Division, by the ENF discusses owls in
Rock Creek area. The grant application acknowledges that a historic nest site is located near an
ORV trail in Rock Creek, and that no activity has been observed at that nest site for the past two
years. The grant application also acknowledges that forestwide, known spotted owl reproduction
only occurred in two PACs in 1998 and 1999.
48. Another example of the Forest Plan’s directive to protect the Eldorado National
Forest’s wildlife is its establishment of road and trail density standards to protect the migratory
Pacific Deer Herd and its critical, winter-range habitat in the Forest. The Pacific Deer Herd is a
migratory mule deer herd that winters in the Georgetown Ranger District and summers in the

adjacent Pacific Ranger District. The road and trail density limit for mule deer winter range
established by the Forest Plan is an average of 2.5 miles of road per square mile and 2.5 miles of
motorized trail per square mile.
ii. 1989 - Administrative Appeals of the Forest Plan
49. On February 17, 1989, the California Department of Fish & Game (CDFG)
administratively appealed the Regional Forester’s approval of the Forest Plan and FEIS. The
CDFG’s appeal raised issues and concerns regarding, among other things, ORV use in the
Forest.
50. In its appeal, CDFG recommended that the Eldorado National Forest be closed to
ORV use in all areas except on designated routes. CDFG further proposed that designated routes
should be evaluated to determine which routes would result in the least impact to soil, water and
plant resources, and to wildlife habitat.
51. On April 6, 1989, the CSNC and others administratively appealed the Regional
Forester’s decision to approve the Forest Plan and FEIS. In its appeal, CSNC incorporated by
reference CDFG’s claims on ORV mismanagement in the Forest.
B. The 1990 Forest ORV Plan
i. 1990 - Adoption of Forest ORV Plan Without Environmental Analysis
52. In 1990, while CDFG and CSNC’s Forest Plan appeals were pending, the Eldorado
National Forest issued the contemplated Eldorado National Forest OHV and Trail Management
Plan (“Forest ORV Plan”). The 1990 Forest ORV Plan purports to implement the 1989 Forest
Plan’s “designated-routes-only” management direction for ORV use.
53. The Forest Service did not follow the procedures mandated by its own regulations or
Executive Orders 11644 or 11989 in designating trails for the 1990 Forest ORV Plan. Instead,
USFS simply identified all known ORV trails – whether included in any road or trail system or
not – in the Forest, and also encouraged local ORV users to submit additional descriptions and
maps of additional places where they liked to drive in the Eldorado National Forest. Based on
this information, the Forest Service published the 1990 Forest ORV Plan designating the existing
ORV routes as the official designated ORV route system, and also proposing new motorized and

non-motorized routes, reroutes, and changes in designations for the Forest’s ORV trails. See
Forest ORV Plan at 4 and 9.
54. The Forest ORV Plan also allows for ORV travel up to 300 feet off designated routes
to access camping areas, cut wood, etc. Such off-trail travel is not provided for in the Forest
Plan.
55. The Forest ORV Plan was adopted without any environmental analysis under NEPA.
The ORV Plan incorporates by reference the earlier, programmatic EIS prepared for the Forest
Plan. But, the Forest Plan FEIS did not analyze the programmatic environmental impacts of a
designated-route-only ORV trail system in the Eldorado National Forest. Nor did it analyze the
environmental impacts of any particular ORV routes in the Forest, or the Forest ORV Plan’s
environmental impacts in permitting travel off of designated routes.
ii. 1990 – Unenforceable Forest Order Restricting ORV Travel
56. In January 1990, a Forest Order was signed restricting ORV travel in the Forest to the
routes designated in the 1990 Forest ORV Plan.
57. Since the 1990 Forest Order’s issuance, a local magistrate has refused to enforce the
Order’s terms restricting ORV travel in the Eldorado National Forest to designated routes on
account of the various deficiencies of the Forest ORV Plan and/or Forest Order.
58. The inability of the Forest Service to restrict ORVs to designated routes due to,
among other things, enforcement problems, is responsible for a significant portion of the damage
that off-road vehicle use within the ENF causes.
iii. 1995 - USFS Orders Preparation of NEPA Analysis for Forest ORV Plan
59. On November 6, 1995, the Reviewing Office for the Chief of the USFS in the
Washington DC office issued a decision on CDFG’s and CSNC’s appeals of the 1989 Forest
Plan. The decisions generally affirmed the Forest Supervisor’s decision to adopt the Forest Plan.
However, the appeal decisions required Defendants to conduct NEPA analysis for the 1990
Forest ORV Plan’s designated trail system. Specifically, the Chief concluded that there had been
“no site-specific analysis to implement the 1990 ORV Plan” and accordingly ordered Eldorado

National Forest officials to “disclose the environmental consequences of the decision in the ORV
Plan to restrict use to designated routes in General Forest areas.” Decision on Appeal #3170,
CDFG of the ENF LRMP, Nov. 6, 1995 at 23.
60. The Chief set a deadline by which the ordered environmental analysis was to be
completed: “This supplemental analysis shall be completed within the next 18 months.” The
environmental analysis was due by May 1997. Id.
iv. 1997 – ENF Fails to Comply With USFS Order to Prepare NEPA Analysis
61. As of the filing of this Complaint, the Eldorado National Forest has not complied
with the Chief’s order despite repeated requests from CSNC, CBD, and others. Defendants have
prepared no NEPA analysis with respect to the adoption and implementation of the 1990 Forest
ORV Plan.
62. Notwithstanding the ongoing lack of NEPA analysis for the 1990 Forest ORV Plan
and USFS’ consequent lack of authority to allow ORV use within the Forest under that Plan, the
Forest Service has continued to implement the 1990 Forest ORV Plan by allowing ORV use on
its designated trail system, by approving particular ORV projects under the Plan, and by
continuing to designate certain areas and trails as open to ORV use under the Plan.
63. In short, for over eleven years the Forest Service has failed to control ORV use in the
Eldorado National Forest because USFS has failed to meet its duties under federal statues, its
own regulations, Executive Orders, the 1989 Forest Plan, and the 1995 order from the Chief of
the Forest Service, to (1) only designate trails for ORV use in the Eldorado National Forest after
considering the correlative use conflicts and environmental impacts, and (2) perform
environmental analysis of the 1990 Forest ORV Plan.
C. The 1987 Rock Creek Recreational Trails Plan and Court-Ordered EIS
i. 1987 - Adoption of Plan Without Environmental Analysis
64. On or about June 5, 1987, ENF officials issued a Decision Notice and Finding of No
Significant Impact in connection with a management plan for ORV use in the Rock Creek area
of the Eldorado National Forest. Eleven administrative appeals were filed, including one by the

CSNC. On or about October 16, 1988, the Regional Forester for Region Five of the U.S. Forest
Service upheld the ENF’s Rock Creek ORV decision, with minor modifications.
ii. 1989 - Federal Court Orders Preparation of EIS
65. On or about March 22, 1989, the CSNC filed a lawsuit in the United States District
Court for the Eastern District of California challenging the ENF’s adoption of the Rock Creek
Trails Plan. In its complaint, CSNC alleged that the Forest Service had violated NEPA by not
preparing an EIS prior to adopting the Rock Creek Trails Plan.
66. On or about September 25, 1989, U.S. District Court Chief Judge Lawrence K.
Karlton held that the ENF’s adoption and implementation of the Rock Creek Trails Plan
constituted a major federal action that may have a significant effect on the environment. Judge
Karlton found that the ENF’s decision to approve the Plan on a Finding of No Significant Impact
was unreasonable and that the ENF had violated its statutory obligations under NEPA. The
District Court then ordered the Forest Service to prepare an EIS for the Rock Creek Trails Plan
as required by NEPA. Friends Aware of Wildlife Needs (FAWN) v. United States Department of
Agriculture, et al., No. Civ. S-88-214 LKK (E.D. CA 1989), p. 38. (Pursuant to L.R. 5-134(d), a
copy of Judge Karlton’s Order in the FAWN case is appended to this Complaint as Exhibit 1.)
iii. 1999 - USFS Certifies Legally Deficient EIS
67. On or about March of 1996, in response to Judge Karlton’s order, the Forest Service
released for public review a draft EIS for its Rock Creek Trails Plan. On or about October of
1997, the Forest Services released a revised draft EIS for the Rock Creek Trails Plan.
68. CSNC provided timely comments on each draft EIS prepared for the Rock Creek
Trails Plan. In each case, CSNC specifically challenged the Draft EIS’ deficient cumulative
impacts analysis. In each case, CSNC pointed out the Service’s failure to adequately analyze
impacts to the Pacific Deer Herd caused by the Rock Creek Trails Plan’s proposal to allow
winter ORV use across three-quarters of the Herd’s 10,000 acre critical winter range. In each
case, CSNC pointed out that any certification of an EIS for the Rock Creek Trails Plan, without a
previous, tiered EIS to address forestwide ORV use, violated NEPA’s tiering process.

69. On about May 21, 1999, Eldorado National Forest Supervisor John Phipps issued a
decision adopting the Rock Creek Trails Plan, and approving the final environmental impact
statement (FEIS) for the Rock Creek Trails Plan. The FEIS adopted the revised draft EIS’
inadequate environmental analysis with only minor changes.
70. The Rock Creek Trails Plan, as approved, allows for the designation of over 110
miles of off-road vehicle routes, including the construction of 17.4 miles of new motorized
routes, within the Rock Creek area of the Georgetown Ranger District. The decision also opens
three-quarters of a 10,000-acre critical winter mule deer range to winter ORV activity.
iv. 1999 - USFS Upholds Deficient EIS on Appeal
71. On July 6, 1999, the CSNC administratively appealed the Forest Supervisor’s
decision to approve the Rock Creek Trails Plan and FEIS. In its appeal, CSNC raised numerous
claims – including the claims raised in this complaint – regarding the Forest Service's failure to
comply with applicable laws and regulations in designating trails in the Rock Creek area, and in
developing and approving the court-ordered Rock Creek Trails Plan EIS.
72. On August 19, 1999, Bradley Powell, who at the time was the Acting Regional
Forester of the Pacific Southwest Region of the U.S. Forest Service (represented by Deputy
Regional Forester Roberta A. Moltzen), issued a decision on CSNC’s administrative appeal
generally affirming the Forest Supervisor’s decision to approve the Rock Creek Trails Plan and
FEIS.
v. Failure to Analyze Forestwide Cumulative ORV Impacts
73. The Rock Creek Trails Plan EIS generally acknowledges that a variety of land uses in
the vicinity of the Rock Creek area – including timber harvest, livestock grazing, and mining –
when taken in combination with ORV use, create cumulative impacts on the area’s natural
resources.
74. The FEIS lists eight (8) general categories of past activities, seven (7) general
categories of present activities, and several reasonably foreseeable projects, all of which may
impact the Eldorado National Forest’s resources in the Rock Creek Trails Plan area. The FEIS
does not provide any quantitative or qualitative analysis as to how these past and present

activities may combine with the Rock Creek Trails Plan to create cumulatively significant
environmental effects.
75. The cumulative impacts analysis in the FEIS fails to evaluate or even mention the
impacts of ORV activity on any of the other fifteen ORV areas within the Forest, including a
neighboring ORV area located within the same ranger district as the Rock Creek ORV area.
vi. Failure to Analyze Cumulative Impacts to Pacific Deer Herd
76. The FEIS for the Rock Creek Trails Plan identifies several species of “particular
concern” in its analysis. They include the California spotted owl, goshawk, California red-
legged frog, and the Pacific Deer Herd. FEIS at S-3 and 2-2.
77. With respect to one of the species of “particular concern” – the mule deer – the Forest
Service included in the Rock Creek Trails Plan FEIS a handful of general sentences regarding
the potential cumulative effects to this species from the Rock Creek Trails Plan, and summarily
concludes that the Plan’s impacts will be insignificant. The FEIS does not address major sources
of potentially significant cumulative impacts to the mule deer, such as grazing, herbicide
spraying, private residential development, and traffic in areas with high road and motorized trail
densities.
78. The Rock Creek Trails Plan FEIS acknowledges that road and trail densities are a
known, significant disturbance factor for the mule deer herd, yet the FEIS does not evaluate
cumulative impacts related to road and trail densities outside the Rock Creek Trails Plan area,
despite the fact that the mule deer’s winter range extends across other ORV use areas in the
ENF’s Georgetown and Pacific Ranger Districts.
79. In short, the FEIS’s “analysis” does not provide any substantive explanation for its
summary conclusion that the cumulative impacts of the Rock Creek Trails Plan are insignificant
to the mule deer. It is likewise not possible to meaningfully evaluate the FEIS’ vague assertions
that, for example, “other” activities combined with ORV use may increase disturbances to the
mule deer.

vii. Failure to Analyze Cumulative Impacts to Spotted Owls
80. With respect to another species of “particular concern” – the California spotted owl –
the analysis in the Rock Creek Trails Plan FEIS contains only a few generalized and unsupported
sentences about the Plan’s cumulative effects on the owl. Of particular note, the FEIS fails to
include or consider a 13-year spotted owl population study within the Georgetown Ranger
District that indicates a downward trend. See Gutierrez, et al., “Population Ecology of the
California Spotted Owl in the Central Sierra Nevada: Annual Results 1998.” Nor does the
analysis disclose similar results of other spotted owl studies in the northern and southern Sierra
Nevada. See, e.g., Blakesley, et al., “Demographic Parameters of the California Spotted Owl on
the Lassen National Forest: Preliminary Results (1990-1998).”
81. The Rock Creek Recreational Trails Record of Decision discloses that a Biological
Evaluation prepared by the Forest Service in connection with the Rock Creek Recreational Trails
EIS concluded that the project may affect the California spotted owl.
viii. Failure to Comply With Regulations in Designating ORV Routes
82. In the Rock Creek Trails Plan FEIS, the Forest Service acknowledges that other
alternatives (i.e., alternatives considered in the FEIS but not chosen) would (1) minimize
disturbance to wildlife to a greater extent than the alternative chosen; (2) minimize adverse
effects to water quality to a greater extent than the alternative chosen; (3) minimize impacts to
soils to a greater extent than the alternative chosen; and (4) minimize conflicts among users to a
greater extent than the alternative chosen.
83. The Rock Creek Recreational Trails Record of Decision discloses that two of the
proposed alternatives represent the “environmentally preferable alternatives” because these two
alternatives provide the greatest protection to natural resources.
D. Annual ORV Route Maintenance Projects and Other Motorized Events
i. ENF’s Use of “Categorical Exclusions” to Avoid NEPA Review
84. On July 21, 2000, Forest Supervisor John Berry issued a letter entitled “Categorical
Exclusion for Off Highway Vehicle route maintenance and recreation facility maintenance” (the
FY 2001 Categorical Exclusion). The FY 2001 Categorical Exclusion exempts the Eldorado

National Forest’s FY 2001 ORV route maintenance projects from documentation in any
Environmental Assessment (EA) or Environmental Impact Statement (EIS).
85. The FY 2001 Categorical Exclusion authorizes, among other things, the “[g]rading,
reshaping, and repairing of running surfaces and drainage structures on existing OHV routes …
using hand tools and mechanized equipment” on about sixty-eight (68) miles of off-road vehicle
routes throughout the ENF during fiscal year 2001. The Categorical Exclusion states that “[t]he
scope of this Proposed Action is limited to routine maintenance of existing OHV routes … and
for which a previous NEPA decision has not already been made.”
86. The FY 2001 Categorical Exclusion does not identify the site-specific locations of
any proposed route maintenance projects. However, the FY 2001 Categorical Exclusion does
briefly summarize the results of USFS’ internal analysis and does acknowledge the presence of
riparian zones, steep slopes, highly erodible soils, and individuals and habitats of threatened or
endangered species in the locations where proposed maintenance is to occur.
87. The FY 2001 Categorical Exclusion references a Biological Evaluation (BE) that the
ENF had undertaken to evaluate the potential effects of the proposed FY 2001 route maintenance
projects on proposed, threatened, endangered, and sensitive wildlife species. (The results of the
BE are summarized in a document dated July 20, 2000 and entitled “Biological Review, FY2001
Routine Maintenance for OHV areas”.) The BE observes that “[p]roject areas occur on all
Districts of the Eldorado National Forest across varying elevations.” The BE concludes:
Upon consideration of the TES wildlife species potentially occurring on the Eldorado National Forest, the project has the potential to effect (sic) habitat or individuals of the bald eagle, California spotted owl, northern goshawk, California red-legged frog, foothill and mountain yellow-legged frogs, northwestern pond turtle, American marten, Pacific fisher, and Sierra Nevada red fox.
ii. CSNC Formally Objects to ENF’s Use of Categorical Exclusion for ORV Maintenance Projects
88. According to USFS’ administrative appeal regulations, a decision for an action that
has been categorically excluded from documentation in an environmental assessment or
environmental impact statement in FSH 1909.15, Sections 31.1 and 31.2, is not subject to appeal.
36 C.F.R. 215.8(4)

89. Defendants made the decision to adopt the FY 2001 Categorical Exclusion without
giving the public any opportunity to comment on the project or Defendants’ internal
environmental analysis.
90. The USFS’ Forest Service Handbook regulations provide that the presence of
threatened or endangered species or their critical habitat and steep slopes or highly erosive soils
are “extraordinary circumstances” in which a “categorically excluded” activity may still have a
significant effect on the environment, therefore requiring NEPA review. FSH § 1909.15, Section
30.3(2).
91. Despite the lack of any opportunity to formally appeal the decision, Plaintiffs
nonetheless wrote letters to the Forest Service objecting to the agency’s use of a categorical
exclusion for its FY 2001 off-road vehicle route maintenance activities. Plaintiffs notified the
Forest Service that it could not use a categorical exclusion because of the admitted presence of
one or more “extraordinary circumstances” – steep slopes, erosive soils, and threatened and
endangered species – in the vicinity of the proposed ORV trail maintenance work.
iii. USFS’ Ongoing Pattern and Practice of Evading NEPA Review for ORV Trail Maintenance Projects and Activities
92. In August 2001, the ENF issued a scoping notice concerning a grant application it
plans to submit to the California OHV Division for funding. This scoping anticipates ORV route
maintenance work for FY 2002.
93. On August 12, 2001, and in response to the August 2001 scoping notice, Plaintiffs
again objected to the Eldorado National Forest’s mismanagement of ORVs and reiterated its
contention that the Forest’s ORV program was, among other things, in violation of NEPA.
94. On October 15, 2001, the Forest Supervisor issued a letter documenting his decision
to categorically exclude various FY 2002 ORV trail maintenance projects.
95. Other than its date of issuance, the FY 2002 Categorical Exclusion document appears
to be a “clip and paste” from the FY 2001 Categorical Exclusion – containing identical language
on the activities, the scope of the exclusion, and the exact same number of miles of ORV routes
to be “maintained.” As with the 2001 document, the FY 2002 Categorical Exclusion summarizes

the results of the agency’s internal analysis, and acknowledges the presence of several
“extraordinary circumstances” – riparian zones, steep slopes, highly erodible soils, and
individuals and habitats of threatened or endangered species – in the areas where maintenance
activities will occur.
96. As with its predecessor, the FY 2002 Categorical Exclusion references a Biological
Evaluation that the ENF had undertaken to evaluate the potential effects of the proposed FY
2001 route maintenance projects on proposed, threatened, endangered, and sensitive wildlife
species. As with the BE for the prior year, the BE for the FY 2002 maintenance projects
concludes:
Upon consideration of the TES wildlife species potentially occurring on the Eldorado National Forest, the project has the potential to effect (sic) habitat or individuals of the bald eagle, California spotted owl, northern goshawk, California red-legged frog, foothill and mountain yellow-legged frogs, northwestern pond turtle, American marten, Pacific fisher, and Sierra Nevada red fox.
97. Defendants made the decision to adopt the FY 2002 Categorical Exclusion without
giving the public any opportunity to comment on the specific projects or Defendants’ internal
environmental analysis.
98. On or about October 4, 2001, District Ranger Kathryn D. Hardy issued a Decision
Memo documenting her decision to categorically exclude from documentation in an EA or EIS
the issuance of a five-year special use permit authorizing a motorcycle club to hold its annual
49er Enduro (the 49er Enduro Categorical Exclusion).
99. The 49er Enduro Categorical Exclusion authorizes up to 550 ORV users to participate
in the 49er Enduro. Very little other information is provided in the Decision Memo about the
event itself, except that it is held in late October of each year and takes place within the Elkins
Flat and Gold Note ORV areas. However, according to Special Use Permit dated October 20,
1999, which authorized a 49er Enduro held on October 23, 1999, the event covers 100 miles and
includes a camp out.
100. The Decision Memo for the 49er Enduro Categorical Exclusion reveals that NEPA
scoping for the project included only one entity: the Polka Dot Motorcycle Club – the permit

applicant. The Service’s regulations, however, require that scoping for a Categorical Exclusion
be performed to the same extent that the Council on Environmental Quality’s regulations require
for the preparation of an Environmental Impact Statement. See Forest Service handbook 1909.15
part 11. In addition, a letter from former Forest Supervisor John Phipps, dated January 26, 1992,
to his District Rangers cites this forest service regulation in stating: “Scoping is now applicable
to all proposed actions, including those categorically excluded from documentation.”
101. A Biological Evaluation and Assessment prepared to analyze the potential effects of
the five-year special use permit for the 49er Enduro for federally listed threatened, endangered,
and proposed terrestrial species, and Region 5 listed sensitive species, discloses that portions of
the project area lie within the designated critical habitat for the California red-legged frog, a
listed species under the federal Endangered Species Act.
102. A Forest Service document dated October 25, 2001, which documents a hydrology
analysis of the Special Use Permit for the 49er Enduro, discloses that the project area includes a
trail system that is located within four watersheds, several of which are part of a larger municipal
watershed.
103. Despite the lack of any opportunity to formally appeal the decision to issue the
permit, and despite not having received any scoping notice for the action, in a letter dated
January 31, 2002, Plaintiffs objected to the ENF’s use of a categorical exclusion for its decision
to issue the 5-year special use permit and contended that the decision to issue the permit violated
NEPA in several respects.
FIRST CLAIM FOR RELIEF
FAILURE TO PREPARE EIS FOR FOREST ORV PLAN
(42 U.S.C. § 4332 AND 5 U.S.C. § 706(2))
104. Plaintiffs reallege all previous paragraphs as if set forth in full.
105. The Defendants are required to prepare a detailed environmental impact statement
for all major federal actions significantly affecting the quality of the human environment.
106. On November 6, 1995, the Chief of the United States Forest Service, through
Reviewing Officer Sterling J. Wilcox, ordered the Eldorado National Forest to disclose the
environmental consequences of its decision to adopt the 1990 Forest ORV Plan within 18
months of the its order.
107. By May 1997, the Eldorado National Forest was required to have prepared the
environmental analysis ordered by the Chief.
108. The Defendants have failed to prepare an environmental analysis for the Forest
ORV Plan in violation of the 1995, mandatory directive by the Washington Office of the U.S.
Forest Service and in violation of the National Environmental Policy Act, 42 U.S.C. § 4332 and
40 C.F.R. § 1500 et seq. Therefore, and pursuant to the Administrative Procedure Act, 5 U.S.C.
§§ 706(2), the USFS’ decision to adopt, and its ongoing implementation of, the 1990 Forest
ORV Plan without proper NEPA review is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.
SECOND CLAIM FOR RELIEF
FAILURE TO ENFORCE FOREST PLAN
(16 U.S.C. § 1600 ET SEQ., AND 5 U.S.C. § 706(1) AND (2))
109. Plaintiffs reallege all preceding paragraphs.
110. The National Forest Management Act, 16 U.S.C. § 1600 et seq., requires each
national forest to prepare a land and resource management plan (forest plan). See 16 U.S.C. §
1604(a). A forest plan, once formally adopted through a record of decision, controls all
management actions on the forest: all subsequent decisions and actions on the forest must be
consistent with, and are governed by, the duly enacted forest plan. 16 U.S.C. § 1604(i).
111. The Eldorado National Forest approved its present Forest Plan in 1989. The Forest
Plan, as amended, adopts standards and management prescriptions that require the Forest Service
to reroute ORV trails outside of spotted owl core areas and PACs unless it is determined through
a biological evaluation that the existing use is not an impact.
112. Despite the clear directive to the contrary in the 1989 Forest Plan, as amended, the
1990 Forest ORV Plan has allowed, and continues to allow, ORV use on trails within SOHA
core areas and PACs. The ENF has failed, for over ten years, to reroute ORV trails outside such
areas – in violation of the 1989 Forest Plan. This failure has occurred and continues to occur

despite CSNC’s repeated letters and communications with the Forest Service seeking
compliance with this mandatory aspect of the Forest Plan.
113. Defendants’ ten-year refusal to remove ORV trails from the Forest’s spotted owl
SOHA core areas and PACs violates the express terms of the 1989 Forest Plan, and therefore
violates NFMA. Defendant’s refusal to act constitutes administrative actions unlawfully
withheld and unreasonably delayed and/or is arbitrary and capricious in violation of the
Administrative Procedure Act, 5 U.S.C. § 706(1) and/or 5 U.S.C. § 706(2).
THIRD CLAIM FOR RELIEF
ROCK CREEK TRAILS PLAN
FAILURE TO ADEQUATELY ANALYZE CUMULATIVE EFFECTS
(42 U.S.C. § 4332, FEDERAL REGULATIONS, AND 5 U.S.C. § 706(2))
114. Plaintiffs reallege all preceding paragraphs.
115. In 1989, Defendants were ordered by Judge Lawrence K. Karlton of the District
Court for the Eastern District of California to prepare an environmental impact statement under
NEPA for the Rock Creek Trails Plan. In performing that analysis, Defendant is required to
investigate and analyze the cumulative impacts of the Rock Creek Trails Plan on various forest
resources, including the California spotted owl and mule deer.
116. The court-ordered FEIS for the Rock Creek Trails Plan – certified ten years after
Judge Karlton’s order – fails in several respects to adequately consider potentially significant
cumulative impacts on spotted owls and mule deer including: (1) the potentially significant
cumulative impacts of other past, present and future activities in the Rock Creek area when
combined with the Plan’s permitted ORV use, (2) the potentially significant cumulative impacts
of past, present and future ORV use in other areas of the Forest when combined with the Plan’s
permitted ORV use, (3) the potentially significant cumulative impacts of other past, present and
future activities in other areas of the Forest when combined with the Plan’s permitted ORV use,
and (4) the potentially significant cumulative impacts of past, present and future activities in
areas outside of the Forest when combined with the Plan’s permitted ORV use. Put plainly, the
Forest Service dragged its feet for ten years to avoid compliance with Judge Karlton’s order, and

then certified a legally deficient EIS so that environmentally destructive ORV use could continue
within Rock Creek as usual.
117. Defendants’ failure to prepare an adequate cumulative impacts analysis for the
Rock Creek Trails Plan violates NEPA. Defendant’s approval of a legally deficient EIS – ten
years after its preparation was ordered by Judge Karlton – is arbitrary and capricious and
otherwise not in accordance with law pursuant to the Administrative Procedure Act, 5 U.S.C. §
706 (2).
FOURTH CLAIM FOR RELIEF
ROCK CREEK TRAILS PLAN
FAILURE TO COMPLY WITH MANDATORY ORV ROUTE DESIGNATION REGULATIONS
(5 U.S.C. § 706(2), 36 C.F.R. 295, AND EXECUTIVE ORDER 11644)
118. Plaintiffs reallege all previous paragraphs as if set forth in full.
119. The Defendants are required to plan and implement off-road vehicle use on
forestlands to protect land and other resources, promote public safety, and minimize conflicts
with other users of the National Forest System lands. Defendants are further specifically
required by USFS’ regulations to locate areas and trails that are open to ORV use to minimize:
(1) damage to soil, watershed, vegetation, and other resources; (2) harassment of wildlife or
disruption of wildlife habitat; and (3) conflicts among users.
120. The Rock Creek Trails Plan designated and located specific areas and trails of
National Forest System lands on which the use of vehicles traveling off National Forest System
roads is allowed, restricted, or prohibited within the meaning of 36 C.F.R. 295.1.
121. The designated trail system that the Rock Creek Trails Plan establishes does not
minimize: damage to the Forest resources; harassment of wildlife and disruption of wildlife
habitat; or conflicts among users. The Rock Creek Trails Plan Record of Decision and FEIS
explicitly acknowledge that other alternatives are the environmentally preferred alternatives, and
that these alternatives – as compared to the adopted Plan – would reduce impacts to soil, water
quality, wildlife, and other users.

122. By adopting a Rock Creek Trails Plan alternative that does not minimize impacts to
soil, water quality, wildlife, and other users, Defendants have failed to comply with mandatory
Forest Service regulations. See 36 C.F.R. Part 295. Therefore, and pursuant to the
Administrative Procedure Act, 5 U.S.C. § 706 (2), Defendant’s decision to adopt and implement
the Rock Creek Trails Plan was arbitrary and capricious and otherwise not in accordance with
law.
FIFTH CLAIM FOR RELIEF
ROCK CREEK TRAILS PLAN
VIOLATION OF FOREST PLAN AND NFMA
(16 U.S.C. § 1600 ET SEQ., 5 U.S.C. § 706(2), AND FEDERAL REGULATIONS)
123. Plaintiffs reallege all previous paragraphs as if set forth in full.
124. Despite the clear directive to the contrary in the 1989 Forest Plan, the Rock Creek
Trails Plan allows existing ORV routes to remain within the Rock Creek area’s spotted owl core
areas and PACs even though the Biological Evaluation prepared for the project concludes that
the Plan may affect the spotted owl.
125. Defendants’ refusal to remove ORV trails from the Rock Creek area’s spotted owl
SOHA core areas and PACs violates the express terms of the Eldorado National Forest Plan, and
therefore violates NFMA. Therefore, Defendants’ decision to adopt and implement the Rock
Creek Trails Plan constitutes administrative action that is arbitrary and capricious and otherwise
not in accordance with law in violation law of the Administrative Procedure Act, 5 U.S.C. §
706(2).
SIXTH CLAIM FOR RELIEF
CATEGORICAL EXCLUSION OF OFF-ROAD VEHICLE PROJECTS
FAILURE TO COMPLY WITH U.S. FOREST SERVICE REGULATIONS
(5 U.S.C. §§ 706(2), 36 C.F.R. § 200, 40 C.F.R. § 1508.4, AND FOREST SERVICE HANDBOOK § 1909.15)
126. Plaintiffs reallege all preceding paragraphs.

127. Although NEPA generally requires the preparation of an environmental analysis
before decisions significantly affecting the quality of the human environment can be adopted, the
Council on Environmental Quality (CEQ) has, pursuant to 42 U.S.C. § 4332, issued regulations
that allow federal agencies to establish categories of decisions which are excluded from NEPA
analysis.
128. The CEQ regulations define such “categorical exclusions” as
a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.
See 40 C.F.R. § 1508.4.
129. The CEQ regulations go on to state that federal agencies must also define
“extraordinary circumstances” under which a normally excluded activity may have a significant
environmental effect, and therefore require NEPA analysis. See id.
130. The CEQ regulations provide that an agency may adopt agency specific NEPA
regulations only after review by and concurrence from the CEQ that the proposed regulations are
consistent with NEPA and CEQ regulations. 40 C.F.R. § 1507.3(a).
131. Pursuant to CEQ’s regulations, the USFS has issued formal notice and comment
regulations in its handbook (“FSH”), defining the types of projects that can be categorically
excluded and listing the extraordinary circumstances which, when present, bar the use of a
categorical exclusion and require the preparation of an EA or EIS. See FSH § 1909.15; 57 Fed.
Reg. 43,180 (Sept. 18, 1992.) The Handbook’s NEPA regulations also include a chart setting
forth how the categorical exclusions and extraordinary circumstances are to be applied and when
the preparation of an EA or EIS is required.
132. The CEQ did review the Forest Service’s regulations and concurred, but with
specific language regarding how the agency’s categorical exclusions and extraordinary
circumstances should be applied to be consistent with NEPA and CEQ regulations. The CEQ
concurrence letter stated that, “With respect to the categorical exclusions outlined in the
procedures, CEQ believes that the Forest Service has given adequate consideration to the

potential environmental impacts of these activities, and thus has a basis for its determination that
they may be categorically excluded from NEPA documentation unless extraordinary
circumstances exist.” (emphasis added). See Letter from Dinah Bear, General Counsel,
Executive Office of the President, Council on Environmental Quality, to David Ketcham,
Director, Environmental Coordination Staff, U.S. Forest Service, of August 29, 1992. The
Defendants further are bound by USFS’ own regulations at 36 C.F.R. § 200 to follow the Forest
Service Handbook’s directives.
133. The FSH regulations, as promulgated by USFS pursuant to 40 C.F.R. sections
1507.3 and1508.4, provide that the presence of, among others, threatened or endangered species
or their critical habitat or steep slopes or highly erosive soils in a project area is an
“extraordinary circumstance” in which a normally excluded action may have a significant effect
on the environment, thus requiring NEPA review. FSH § 1909.15, Section 30.3(2).
134. The ENF’s FY 2001 and FY 2002 Categorical Exclusion for ORV trail maintenance
projects explicitly state that the project activities will take place (1) in areas where threatened
and endangered species are present and (2) in areas where steep slopes and highly erosive soils
exist. In other words, the very documents in which the ENF seeks to assert a “categorical
exclusion” for ORV maintenance project admit that there are “extraordinary circumstances” that
prevent the use of a categorical exemption to avoid NEPA review.
135. Defendants’ pattern and practice of using categorical exclusions to exempt annual
ORV trail maintenance from NEPA review – despite the presence of threatened and endangered
species, and the existence of steep slopes and highly erosive soils, in the proposed trail
maintenance areas – violates NEPA, the CEQ’s regulations, and the USFS’ Forest Service
Handbook regulations. Therefore, and pursuant to the Administrative Procedure Act, 5 U.S.C.
§706(2), the Forest Service’s pattern and practice of issuing categorical exclusions for both the
FY 2001 and FY 2002 ORV trail maintenance projects, as well as for the issuance of the five-
year Special Use Permit for the 49er Enduro, was arbitrary and capricious and otherwise not in
accordance with the law.

EQUAL ACCESS TO JUSTICE
136. Plaintiffs reallege all preceding paragraphs.
137. In each and all of the Causes of Action alleged in this Complaint, Plaintiffs seek an
award of reasonable attorney fees and costs pursuant to the Equal Access to Justice Act (EAJA),
28 U.S.C. § 2412.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court:
1. Declare that Defendants' ongoing implementation of the 1990 Forest ORV Plan
violates both NEPA and the APA, and is arbitrary and capricious, and otherwise not in
accordance with law;
2. Declare that Defendants’ failure to prepare an EIS for the 1990 Forest ORV Plan by
May of 1997 – as ordered by the Chief of the USFS in 1995 – is agency action unlawfully
withheld or unreasonably delayed;
3. Declare that Defendants' decision approving the Rock Creek Trails Plan without first
conducting an adequate cumulative effects analysis under NEPA is arbitrary and capricious, and
otherwise not in accordance with law, and violates both NEPA and the APA;
4. Declare that Defendants’ decision approving the Rock Creek Trails Plan without
complying with mandatory ORV route designation requirements is arbitrary and capricious, and
otherwise not in accordance with law, and violates both Executive Order 11644 and 36 C.F.R.
Part 295;
5. Declare that Defendants' use of categorical exclusions for its annual ORV route
maintenance projects and use permits, where the categorical exemptions themselves
acknowledge that “extraordinary circumstances” exist in the project area, is arbitrary and
capricious, and otherwise not in accordance with law, and violates both NEPA and the APA;

6. Declare that Defendants have used categorical exclusions for ORV maintenance
projects and use permits that do not properly qualify for categorical exclusion status under the
Services’ and CEQ’s regulations, and therefore is arbitrary and capricious, and otherwise not in
accordance with law, and violates both NEPA and the APA;
7. Declare that Defendants failure to carry out scoping for projects for which the Service
has proposed to issue a categorical exclusion, as required by the Service’s regulations, is
arbitrary and capricious, and otherwise not in accordance with law, and violates both NEPA and
the APA;
8. Declare that Defendants have engaged in a pattern and practice of improperly using
categorical exclusions to evade proper NEPA review of ORV projects and uses in the ENF that
is arbitrary and capricious, and otherwise not in accordance with law, and violates both NEPA
and the APA;
9. Enter an order enjoining Defendants (1) from allowing ORV use anywhere in the
Eldorado National Forest and (2) from implementing any ORV-related development projects or
authorizing any ORV uses anywhere in the Forest – such as trail designation, construction and/or
reconstruction, use permits, and staging area designation and/or development – until (1)
completion of a forestwide ORV plan with routes designated in compliance with the ORV trail-
designation procedures set forth in NFMA, USFS’ regulations, and Executive Orders 11644 and
11989; (2) preparation of an EIS to analyze the impacts of the proposed forestwide ORV plan,
including a “No Project” alternative; and (3) adoption and filing of a Record of Decision for the
forestwide ORV plan;
10. Issue an injunction compelling Defendants to comply with NFMA, USFS’
regulations, and Executive Orders 11644 and 11989 by (1) prohibiting all ORV use in the
Eldorado National Forest; and (2) refraining from all ORV-related development projects in the
Forest until the following steps are taken: (1) completion of a forestwide ORV plan with routes
designated in compliance with the ORV trail-designation procedures set forth in NFMA, USFS’
regulations, and Executive Orders 11644 and 11989; (2) preparation of an EIS to analyze the

impacts of the proposed forestwide ORV plan, including a “No Project” alternative, and (3)
adoption and filing of a Record of Decision for the forestwide ORV plan;
11. Retain jurisdiction over the Forest Service’s proceedings by allowing Plaintiffs the
opportunity for a hearing upon the completion of the above requested Forest ORV Plan, EIS and
ROD for ORV use in the ENF to raise any new issues of noncompliance by the USFS in
preparing the new Forest ORV Plan, EIS and ROD.
12. Enter an order enjoining Defendants (1) from allowing any ORV use in the Rock
Creek area, and (2) from implementing any ORV-related development projects – such as trail
designation, construction and/or reconstruction, and staging area designation and/or development
– pending (1) completion of an ORV plan for the Rock Creek Trails Plan area with routes
designated in compliance with the ORV trail-designation procedures set forth in NFMA, USFS’
regulations, and Executive Orders 11644 and 11989; (2) preparation of an EIS that adequately
analyzes the impacts – including the cumulative impacts – of the proposed Rock Creek Trails
Plan, including a “No Project” alternative, and (3) adoption and filing of a Record of Decision
for the Rock Creek Trails Plan;
13. Issue an injunction compelling Defendants to comply with NFMA, USFS’
regulations, and Executive Orders 11644 and 11989 by (1) prohibiting all ORV use in the Rock
Creek area of the Eldorado National Forest, and (2) refraining from all ORV-related
development projects in the Rock Creek area until (1) completion of an ORV plan for the Rock
Creek area with routes designated in compliance with the ORV trail-designation procedures set
forth in NFMA, USFS’ regulations, and Executive Orders 11644 and 11989; (2) preparation of
an EIS to analyze the impacts of the proposed Rock Creek Trails ORV plan, including a “No
Project” alternative, and (3) adoption and filing of a Record of Decision for the forestwide ORV
plan;
14. Retain jurisdiction over the Forest Service’s proceedings by allowing Plaintiffs the
opportunity for a hearing upon the completion of the above requested ORV Plan, EIS and ROD
for ORV use in the Rock Creek area to raise any new issues of continued noncompliance by the
USFS in preparing the new Rock Creek Trails Plan, EIS and ROD.

15. Enter an order enjoining Defendants from using categorical exclusions to avoid
NEPA review of trail maintenance projects in areas where “extraordinary circumstances,” as
defined by USFS’ CEQ-approved regulations, are present;
16. Enter an order enjoining Defendants from using categorical exclusions to avoid
NEPA review of special use permits for ORV activities where the activity is not clearly covered
by an available category of categorical exclusion as set forth by the Service’s regulations;
17. Enter an order compelling Defendants to conduct scoping for all projects, including
those for which the Service proposes to issue a categorical exclusion, as required by the
Service’s regulations;
18. Award Plaintiffs their reasonable attorney fees and costs for this litigation pursuant to
the Equal Access to Justice Act, 28 U.S.C. § 2412(d);
19. Allow Plaintiffs their costs herein pursuant to Rule 54(d) of the Federal Rules of Civil
Procedure; and
20. Grant such other and further relief as the Court may deem just and proper.
DATED this ___ day of February, 2002.
Respectfully submitted,
___________________________________ J. WILLIAM YEATES KEITH G. WAGNER RONNI M. FLANNERY Attorneys for Plaintiffs