Alliance for the Wild Rockies v. BRADFORD et al
Filing
118
ORDER. IT IS ORDERED that the agencies' motion to dissolve the injunction against the Miller Project (Doc. 112 ) is GRANTED, and the injunction is dissolved. Signed by Judge Donald W. Molloy on 11/15/2018. (NOS)
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
NOV 1 5 2018
Clerk, U.S District Court
District Of Montana
Missoula
CV 09-160-M-DWM
ALLIANCE FOR THE WILD
ROCKIES,
Plaintiff,
ORDER
vs.
CHRIS SAVAGE, Supervisor of the
Kootenai National Forest, et al.,
Defendants.
INTRODUCTION
Defendants the United States Forest Service, the United States Fish and
Wildlife Service, and their official representatives (collectively "the agencies")
move under Federal Rule of Civil Procedure 60(b)(5) to dissolve the injunction
against the Miller West Fisher Project ("Miller Project"). (Doc. 112.) The
agencies argue that dissolving the injunction is warranted because their Final
Supplemental Environmental Impact Statement ("Final Supplemental EIS") and
new Record of Decision for the Miller Project comply with this Court's remand
order instructing them to address the deficiencies in the administrative record. In
opposition, plaintiff Alliance for the Wild Rockies ("Alliance") argues that the
agencies have failed to address a violation of Section 7 of the ESA. Alliance
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concedes, and the administrative record supports, that the other violations have
been resolved. The motion to dissolve the injunction is granted and the injunction
is dissolved.
BACKGROUND
This action commenced in 2009 when Alliance sought judicial review of the
Miller Project, the Grizzly Project, and the Little Beaver Project on the Kootenai
National Forest under the Administrative Procedure Act ("APA"). Alliance
alleged the projects violated the Endangered Species Act ("ESA"), the National
Forest Management Act ("NFMA"), and the National Environmental Policy Act
("NEPA"). On June 29, 2010, the Court granted summary judgment for Alliance
on five claims applicable to the Miller Project. (Doc. 44.) Specifically, the Court
held that the agencies (1) violated Section 9 of the ESA because the Miller Project
would take grizzly bears beyond that permitted by the incidental take statement,
(2) violated Section 7 of the ESA by concluding that unpermitted take was "not
likely to adversely affect" grizzly bear and failing to substantiate their conclusion
that helicopter logging was "not likely to adversely affect" grizzly bear,
(3) violated NFMA by failing to show that the Miller Project was consistent with
the Kootenai Forest Plan's requirement that projects be compatible with grizzly
bear needs, (4) violated NEPA by failing to explain why analyzing cumulative
effects at the Bear Management Unit level was proper, and (5) violated NEPA by
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relying on the Wakkinen and Kasworm study ("Wakkinen study") to set grizzly
bear habitat standards without addressing the study' s flaws.
The Court enjoined all three projects and remanded the matter to the
agencies to address the deficiencies in the administrative record. The injunctions
against the Grizzly and Little Beaver Projects were dissolved after determinations
that the agencies satisfied the remand order with respect to those projects. (Doc.
73; Doc. 94.) The agencies now move to dissolve the injunction against the Miller
Project.
LEGAL STANDARDS
I.
Rule 60(b)(5)
Federal Rule of Civil Procedure 60(b)(5) provides that "the court may
relieve a party or its legal representative from a final judgment, order, or
proceeding" when, among other things, "the judgment has been satisfied, released
or discharged ... or applying it prospectively is no longer equitable." Rule
60(b)(5) codifies a court's inherent power to modify or vacate judgments when
continued enforcement would be inequitable. See Bellevue Manor Assocs. v.
United States, 165 F.3d 1249, 1252 (9th Cir. 1999). The party seeking relief from
a judgment must establish "a significant change either in factual conditions or in
law" that warrants relief. Horne v. Flores, 557 U.S. 433, 447 (2009) (quoting Rufo
v. Inmates ofSuffolk Jail, 502 U.S. 367, 384 (1992)). "[A] court abuses its
3
discretion 'when it refuses to modify an injunction or consent decree in light of
such changes."' Id. (quoting Agostini v. Felton, 521U.S.203, 215 (1997)).
II.
APA
ESA, NEPA, and NFMA claims are reviewed under the APA, which
provides that a court shall "hold unlawful and set aside agency actions, findings,
and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." 5 U.S.C. § 706(2)(a). An action is
arbitrary and capricious "if the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise." Motor Vehicle Mfrs. Ass 'n of US.,
Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).
ANALYSIS
I.
ESA
A.
Section 9
The agencies violated Section 9 of the ESA because the Miller Project
would have resulted in unpermitted incidental take of grizzly bear in the region
known as the reoccurring use polygon. 1 Section 9 of the ESA makes it unlawful to
1
The administrative record uses the terms "reoccurring use polygon," "recurring
4
"take"-meaning "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such conduct"-an endangered species.
16 U.S.C. §§ 1538(a)(l)(b), 1532(19). Pursuant to Section 4(d) of the ESA, the
Fish and Wildlife Service has extended the prohibition to the grizzly bear, a
threatened species. 16 U.S.C. § 1533(d); 50 C.F.R. § 17.40(b). A federal agency
is exempt from Section 9 if it complies with the conditions in a written incidental
take statement from the Fish and Wildlife Service. 16 U.S.C. § 1536(b)(4), (o)(2).
The Miller Project will cause incidental take of grizzly bear in the CabinetYaak grizzly bear recovery zone and in the area outside the recovery zone known
as the reoccurring use polygon. In 1995 the Fish and Wildlife Service issued an
incidental take statement that, as amended by the 1998 Interim Access
Management Rule Set, permitted incidental take of grizzly bear inside the recovery
zone. It did not permit incidental take in the reoccurring use polygon. Thus, as
explained more fully in the remand order, the Miller Project's incidental take in the
reoccurring use polygon violated Section 9. (Doc. 44 at 35-39.)
Since the remand order issued in 2010, the Kootenai National Forest Plan
has been amended, see AR 11-65; AR 10-4, 2 and the Fish and Wildlife Service has
issued a new incidental take statement for grizzly bear in the Cabinet-Yaak region,
use polygon," and "BORZ" interchangeably.
Citations to the administrative record are denoted as AR [volume number][document number]:[PDF page number].
2
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see AR 11-67:106-12. In 2011, the Forest Service adopted the Forest Plan
Amendments for Motorized Access Management within the Selkirk and CabinetYaak Grizzly Bear Recovery Zones ("Access Amendments") to govern motorized
vehicle access to grizzly bear habitat in the Kootenai National Forest. AR 11-65.
The Fish and Wildlife Service issued an Incidental Take Statement for the Access
Amendments ("Incidental Take Statement"). AR 11-67:106-12. The Incidental
Take Statement permits incidental take of grizzly bear in the reoccurring use
polygon provided that there are no permanent increases in linear miles of open
road or total road above specified baselines, that potential increases in linear miles
are offset with reductions at the same time as or prior to the increase, that
temporary increases in linear miles comply with measures to minimize their
impact, and that timber harvest activities occurring within multiple watersheds are
scheduled to minimize the disturbance of grizzly bears. Id. at 17- 18, 111-12. In
2015, the Access Amendments were incorporated into the revised Kootenai Forest
Plan. AR 10-4:19. Accordingly, the Incidental Take Statement, AR 11-67:10612, is still operative.
As Alliance concedes, the Incidental Take Statement supports incidental
take in the reoccurring use polygon, provided certain conditions are met. The
administrative record shows, and Alliance does not dispute, that the Miller Project
complies with those conditions. First, the Miller Project will not result in any
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permanent increase of open or total linear road miles. AR 9-6:25. Second,
because the Miller Project does not contemplate any potential permanent increases,
there is no need for an offset. Third, the Miller Project's temporary increase in
linear open road miles in the reoccurring use polygon complies with the Incidental
Take Statement, which allows temporary roads in the reoccurring use polygon to
open to the public for the remainder of the summer after harvest activities are
complete. Id. at 25, 41; AR 11-67:18. Finally, timber harvests in the reoccurring
use polygon will be scheduled to minimize the disturbance of sensitive species,
including grizzly bear. AR 9-6:26-27, 32, 82, 93, 148-49, 155. The Incidental
Take Statement, then, exempts the Miller Project from Section 9 and cures the
violation identified in the remand order.
B.
Section 7
The agencies violated Section 7 of the ESA in two ways: (1) by concluding
that unpermitted take was "not likely to adversely affect" grizzly bears and (2) by
failing to substantiate their conclusion that helicopter logging was "not likely to
adversely affect" grizzly bears. Section 7 of the ESA requires federal agencies, in
consultation with the Fish and Wildlife Service or the National Marine Fisheries
Service, to "insure that any action authorized, funded, or carried out by such
agency ... is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse modification"
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of critical habitat. 16 U.S.C. § 1536(a)(2). Section 7 consultation is required when
a federal agency determines that its action "may affect" a listed species or critical
habitat. 50 C.F.R. § 402.14(a). The consultation may be informal when the
agency determines that its action "may affect" but is "not likely to adversely
affect" a listed species and the Fish and Wildlife Service or the National Marine
Fisheries Service concurs in writing. 50 C.F.R §§ 402.14(b)(l), 402.12(k)(l).
Formal consultation is required when the agency determines that its action is
"likely to adversely affect" a listed species. 50 C.F .R. § 402.14( a). At the end of
formal consultation, the Fish and Wildlife Service or the National Marine Fisheries
Service issues a biological opinion as to whether the action is likely to jeopardize a
listed species or its critical habitat. 50 C.F.R. § 402.14(h). A biological opinion
that concludes an action is likely to jeopardize a listed species or critical habitat
must include reasonable and prudent alternatives to avoid the jeopardy. Id. If
necessary, an incidental take statement will also be issued. 50 C.F.R. § 402.14(i).
1.
Incidental Take Statement
The Miller Project's unpermitted take in the reoccurring use polygon that
formed the basis of the Section 9 violation also formed the basis of the first Section
7 violation. As explained more fully in the remand order, the agencies'
determination that the Miller Project "was not likely to adversely affect" grizzly
bears violated Section 7 because unpermitted incidental take is an adverse effect.
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(Doc. 44 at 41.) As described above, the Incidental Take Statement issued for the
Access Amendments permits incidental take of grizzly bears in the reoccurring use
polygon. Because the Miller Project no longer involves unpermitted take, the first
Section 7 violation identified in the remand order has been cured.
Alliance contends that according to the Fish and Wildlife Service's ESA
Section 7 Handbook, even permitted incidental take is an adverse effect that
compels an is "likely to adversely affect" determination. Alliance further argues
that the agencies should have analyzed the incidental take in their supplemental
analysis of the Miller Project on remand. Alliance's argument fails to appreciate
the relationship between the Access Amendments and the Miller Project.
Before adopting the Access Amendments in 2011, the Forest Service
concluded that they were "likely to adversely affect" grizzly bears and initiated
formal Section 7 consultation with the Fish and Wildlife Service. AR 11-66:3.
The formal consultation resulted in the Biological Opinion and Incidental Take
Statement for the Access Amendments, discussed above. AR 11-67. The
Biological Opinion concluded that the Access Amendments are not likely to
jeopardize grizzly bears. AR 11-67:101.
The Biological Opinion also established the baseline conditions for grizzly
bears in the Cabinet-Yaak Ecosystem, inside the recovery zone and in the
reoccurring use polygon. AR 10-2:1-2. Whether subsequent agency action
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adversely affects grizzly bears is measured against those baseline conditions.
AR 10-2:2. The Fish and Wildlife Service described this as a "tiered consultation
framework," explaining that
The biological opinion has been identified as the first-tier of a tiered
consultation framework, with the review of subsequent projects related
to access management that may affect grizzly bears as being the secondtier of consultation. Second-tier biological opinions would be issued as
appropriate, where proposed actions would result in adverse effects to
grizzly bears that were not fully analyzed in the first-tier biological
opinion.
AR 10-2:2 (emphasis added); see also Gifford Pinchot Task Force v. Fish &
Wildlife Serv., 378 F.3d 1059, 1067-68 (9th Cir.) (approving "programmatic
environmental analysis supplemented by later project-specific environmental
analysis" in the context of Section 7 consultation), amended on other grounds by
387 F.3d 968 (2004).
The supplemental analysis of the Miller Project on remand occurred after the
Access Amendments and therefore at the "second tier" of the consultation
framework. That the Miller Project is "not likely to adversely affect" grizzly bears
means that it will not result in adverse effects beyond those already analyzed at the
"first tier" in the Biological Opinion and Incidental Take Statement. Indeed, in its
concurrence to the Miller Project's "not likely to adversely affect" determination,
the Fish and Wildlife Service explained that "the proposed action is not likely to
adversely affect the threatened grizzly bear in ways other than described in the
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2011 consultation on the Access Amendment." AR 10-2:3 (emphasis added). The
incidental take resulted in a "likely to adversely affect" determination and was
fully analyzed at the first tier. Contrary to Alliance's contention, that analysis did
not need to be repeated and the Miller Project's "not likely to adversely affect
determination" is proper at the second tier.
2.
Elimination of Helicopter Logging
The Miller Project originally called for helicopter logging. As explained
more fully in the remand order, the agencies failed to substantiate their
determination that the helicopter logging was "not likely to adversely affect"
grizzly bears. (Doc. 44 at 47-50.) The agencies have since eliminated helicopter
logging from the Miller Project. AR 7A-1:14; AR 9-6:12-13, 26. As Alliance
concedes, the elimination of helicopter logging cures the second Section 7
violation identified in the remand order.
II.
NFMA
The agencies violated NFMA by failing to show that the Miller Project
complied with the Kootenai National Forest Plan's standard for grizzly bear needs
on Management Situation 1 lands. NFMA requires the Forest Service to develop a
forest plan for each national forest. 16 U.S.C. § 1604(a). Subsequent projects
within a national forest must be consistent with the forest plan. 16 U.S.C.
§ 1604(i). At the time of the remand order, the 1987 Kootenai Forest Plan was the
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governing plan. It required decisions on lands designated "Management Situation
1," which includes most of the Miller Project, to "favor the needs of the grizzly
bear when grizzly habitat and other land use values compete" and provided that
"[l]and uses which can affect grizzlies and/or their habitat will be made compatible
with grizzly needs or such uses will be disallowed or eliminated." AR 2-270:91.
As explained more fully in the remand order, the Miller Project analysis did not
explicitly address the standard for Management Situation 1 lands and the record
was unclear as to whether the standard was met. (Doc. 44 at 54-58.)
Since the remand order issued, the 1987 Kootenai Forest Plan has been
replaced by the 2015 Kootenai Forest Plan. AR 10-4. The 2015 Plan includes the
same standard for Management Situation 1 lands as the 1987 Plan. See AR 9-6:30.
The agencies have explicitly addressed this standard and explained how the Miller
Project meets it in their Final Supplemental EIS. AR 9-6:30-33. Indeed, as
Alliance concedes, the Final Supplemental EIS's analysis is substantially similar to
the analysis that the Court determined was sufficient to resolve the same NFMA
violation with respect to the Grizzly Project. The Final Supplemental EIS's
analysis of the Miller Project and the Forest Plan cures the NFMA violation
identified in the remand order.
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III.
NEPA
A.
Bear Management Units
The agencies originally violated NEPA by failing to explain why analyzing
cumulative effects at the Bear Management Unit level was proper. NEPA requires
all federal agencies to prepare an EIS for major actions that significantly affect the
quality of the human environment. 42 U.S.C. § 4332(C). The EIS must analyze
the cumulative effect of the proposed action, meaning the "incremental impact of
the action when added to other past, present, and reasonably foreseeable future
actions." 40 C.F.R. §§ 1508.25(c), 1508.7. An agency has discretion to choose the
geographic scope of its cumulative effects analysis, but the record must support the
agency's choice. See Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944,
958-60 (9th Cir. 2003).
The agencies analyzed the Miller Project's cumulative effects at the Bear
Management Unit level, but, as explained more fully in the remand order, the
agencies never discussed why the Bear Management Unit is the proper level of
analysis. (Doc. 44 at 62-65.) The agencies have since explained their use of the
Bear Management Unit for the cumulative effects analysis in the Final
Supplemental EIS. AR 9-6: 16-18. As Alliance concedes, the Final Supplemental
EIS's explanation of the cumulative effects analysis is substantially similar to the
analysis that the Court determined was sufficient to resolve the same NEPA
13
violation with respect to the Grizzly Project. The Final Supplemental EIS cures
the first NEPA violation identified in the remand order.
B.
Wakkinen Study
The agencies originally violated NEPA by relying on the Wakkinen study to
set grizzly bear habitat standards without addressing the study's flaws. NEPA
requires agencies to "take a 'hard look' at the environmental effects of their
planned action." Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989). It
"places upon an agency the obligation to consider every significant aspect of the
environmental impact of the proposed action" and "ensures that the agency will
inform the public that it has indeed considered environmental concerns in its
decisionmaking process." Bait. Gas & Elec. Co. v. Natural Res. Def Council, 462
U.S. 87, 97 (1983) (citations omitted). Further, an agency must disclose when
relevant information is "incomplete or unavailable." 40 C.F.R. § 1502.22.
The Wakkinen study is a peer-reviewed study of local bear populations in
the Selkirk and Cabinet-Yaak Ecosystems. The agencies relied on the Wakkinen
study as the best available science regarding the management of grizzly bear
habitat in relation to motorized routes in the Selkirk and Cabinet-Yaak
Ecosystems. As explained more fully in the remand order, the agencies violated
NEPA by failing to take a "hard look" at the Wakkinen study's flaws because
"[w ]ithout a discussion in the EIS or Biological Assessment of the problems with
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the Wakk:inen study, the public cannot adequately evaluate the agency's decisionmaking process." (Doc. 44 at 67.)
The agencies have since addressed the limitations of the Wakkinen study in
Appendix C to the Final Supplemental EIS. As Alliance concedes, the Final
Supplemental EIS's analysis of the Wakkinen study is substantially similar to, if
not the same as, the analysis that the Court determined was sufficient to resolve the
same NEPA violation with respect to the Grizzly Project. The Final Supplemental
EIS cures the second NEPA violation identified in the remand order.
CONCLUSION
The supplemental analysis completed by the agencies on remand brings the
Miller Project into compliance with the ESA, NFMA, and NEPA. Accordingly,
the June 2010 Judgment has been satisfied and it is inequitable for the injunction to
remain in place.
IT IS ORDERED that the agencies' motion to dissolve the injunction against
the Miller Project (Doc. 112) is GRANTED, and the injunction is dissolved.
DATED this / rday ofNovember, 2018.
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