Alliance for the Wild Rockies v. BRADFORD et al

Filing 73

ORDER granting 65 motion to dissolve the injunction against the Little Beaver Project. Signed by Judge Donald W. Molloy on 4/3/2012. (ASG, )

FILED

APR 03 2012
IN THE UNITED STATES DISTRICT COURT

PATRICK E DUFFY, CLERK
By DEPUTY CL!~R=K~,~IS""SO"'U;;-LA;
M

FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ALLIANCE FOR THE WILD ROCKIES,--)
)
)
Plaintiff,
)
)
)
vs.
)
PAUL BRADFORD, Supervisor of the
)
Kootenai National Forest, JANE
)
COTTRELL, Acting Regional Forester of )
Region One ofthe U.S. Forest Service,
)
UNITED STATES FOREST SERVICE, an )
)
agency of the U.S. Department of
Agriculture, and UNITED STATES FISH )
& WILDLIFE SERVICE, an agency of the )
)
U.S. Department ofInterior,
)
Defendants.
)

CV 09-160-M-DWM

ORDER

----------------------)
I. Introduction
The United States Forest Service ("Forest Service") and United States Fish

& Wildlife Service ("Fish & Wildlife") (collectively "the agencies") move to
dissolve the injunction issued on the Little Beaver Hazardous Fuels Reduction
Project ("Little Beaver Project" or "the Project"). Alliancefor the Wild Rockies v.
1

Bradford, 720 F. Supp. 2d 1193, 1222 (D. Mont. June 29, 2010). The agencies
maintain that lifting the injunction is appropriate because they have complied with
the remand order by completing a revised Environmental Assessment ("EN')
addressing the inadequacies ofthe original EA. Alliance for the Wild Rockies
("Alliance") on the other hand opposes the motion, insisting that the revised EA
fails to address all ofthe deficiencies identified in Alliancefor the Wild Rockies.
For the reasons set forth below, the agencies' motion is granted. and the injunction
is dissolved.

II. Factual Background
On June 29, 2010, a fuel reduction known as the Little Beaver Project.

designed to protect privately owned property adjacent to federal lands near Trout
Creek, was enjoined. Alliance for the Wild Rockies, 720 F. Supp. 2d at 1222. The
injunction stemmed from contradictions in the administrative record regarding
grizzly bear presence in the Project area. For example, the Biological Assessment
concluded that grizzlies were present in the Clark Fork Bears Outside Recovery
Zone ("Clark Fork BORZ"),I an area that included the Project area, while other
portions ofthe EA concluded that bears were not present in the Project area. /d. at

I The terms "BORZ" and "reoccurring use polygon" are used interchangeably in the
administrative record to refer to the areas outside the Cabinet-Yaak Recovery Zone that contain
grizzlies.

2

1215. The natural inference drawn from these contradictions was that
consideration of the grizzly bear issues by the agencies was arbitrary and
capricious under the Endangered Species Act ("ESA"),2 the National
Environmental Policy Act ("NEPA"),3 and the National Forest Management Act
("NFMA,,).4
After the Forest Service filed the original Project proposal, but prior to
Alliance filing its complaint in this matter, Forest Service and Fish & Wildlife
representatives engaged in talks about removing the Project area from the Clark
Fork BORZ. During the summer and fall of 2009, the agencies met to update the
Clark Fork BORZ boundaries. AR-1-40.1-09:6. 5 Months later, based on the
absence of reliable grizzly bear sightings from 1995 to present and the lack of other
evidence of grizzly bear habitation (tracks, scat, etc.), the agencies dropped three
areas, including the Project area, from the Clark Fork BORZ. Id. at 6,36-37,40.

2

16 U.S.C. § 1533 et seq. (2006).

3

42 U.S.C. § 4321 et seq. (2006).

4

16 U.S.C. § 1600 et seq. (2006).

, Citations to the Administrative Record are denoted as AR-l-[volume
number]-[document number):[pDF page number]. For purposes of clarity, the Court's citations
refer to the administrative record as denoted in the Administrative File Index (doc. 64-1 at 3-32).
This clarification is necessary because the electronic administrative record provided to the Court
on disk does not match the citations that are used by the parties and the organization reflected in
the Administrative File Index. The Court was able, however, to locate on the disk all the
administrative documents referred to by the parties in their briefs.
3

The discussions and decision to update the BORZ boundaries were not before the
Court in the Alliancefor the Wild Rockies litigation.
This infonnation was incorporated in a revised EA. The revised EA
concluded that the Project (1) complied with the ESA because there were no grizzly
bears in the Project area, so there would be no "take" of grizzlies due to Project
activities such as road building and helicopter logging, AR~0.I-04:135-136; that
the project (2) complied with NEPA by articulating that it was proper to analyze
the cumulative effects of the Project on a project level instead of a forest-wide level
because of the Project's isolated location and its distance from the nearest
confmned grizzly habitat, id. at 135; and that the project (3) complied with the
NFMA by concluding that the Project area is not located in a Management
Situation 1,2, or 3 area, AR-l- 40.1-12:12. Given the revised EA's conclusions,
the Forest Service insists that a change in circumstances-their compliance with
the remand order-means the injunction should be dissolved.
Alliance takes the position that removal of the injunction is mistaken and
unwarranted. Alliance concedes that the revised EA resolved the NFMA violation
found in Alliancefor the Wild Rockies. (Doc. 70 at 10.) But, with respect to the
ESA and NEPA deficiencies, Alliance claims that the doctrines of res judicata and
collateral estoppel bar the Forest Service from abandoning its earlier position and
4

asserting that grizzly bears are not in the Project area now. Alliance maintains that
the Forest Service's conclusion-that there are no grizzly bears present in the
Project area-is arbitrary and capricious when considered holistically in view of
the entire litigation record. Finally, Alliance argues alternatively that even if there
are no grizzly bears in the Project area, the injunction is still warranted because the
absence of grizzly bears shows that the Service breached its duty to protect an
endangered species.
Alliance offers four affirmative propositions to show that grizzlies are still in
the Project area. First, it invokes a 1996 Forest Service publication entitled
"Beaver Creek Physiographic Area Landscape Assessment: An analysis of the
biological and cultural ecology ofthe Beaver Creek Physiographic Area." (See
Doc. 70 at 5-6 (citing AR-1-20-27:172, 158-159).) The 1996 Landscape
Assessment shows that the Little Beaver area was historically inhabited by
grizzlies, AR-1-20-27: 172, but then goes on to reflect the rapid drop in the grizzly
population throughout the 20th Century, id. at 158-159.
Second, Alliance relies on the 2008/2009 "Travel Analysis Report: Beaver
Creek Travel Analysis," AR-1-35--02, a Forest Service assessment of the impact of
project roads on the area's wildlife and habitat, id. at 5. A single sentence in that
59-page document notes: "Grizzly bear, gray wolf, lynx, and bald eagle, protected
5

under the Endangered Species Act, utilize this area." fd. at 12.
Third, Alliance incorporates Forest Service records that indicate there were
three reported grizzly bear sightings in the Beaver Creek drainage between 1995
and 2010. (Doc. 70 at 6 (citing AR-l-6-4l).)
Finally, Alliance summons the "Bitterroot Mountains Bear DNA and Camera
Survey: 2008~2009," (hereinafter "2008-2009 Bear DNA and Camera Survey")
AR-1-40.3-23, a survey that used "barbed-wire hair stations and motion-triggered
digital cameras" in an attempt to establish the presence of grizzly bears in the area.

fd. at 3. While the survey did not "detect any grizzly bears in the study area," its
disclaimer is banked on for its negative pregnant: "Our inability to detect grizzly
bears does not mean they are absent from the study area. Grizzly bear mortalities
within or adjacent to ... the Clark Fork Study Area suggest grizzly bears at least
occasionally use these areas." ld. at 1 L
The Forest Service reasons that the record supports its finding that there are
no grizzlies in the Project area. First, while it acknowledges there were three
reported bear sightings between 1995 and 2010, it insists there was only one
credible sighting-in 1995. (Doc. 71 at 4 (citing AR-I-40.3-14:8).) Grizzly bear
sightings are rated on a scale of 1 to 5, with 5 being the most credible. The 1996
and 2003 sightings were rated below a 4 and so they were excluded from the
6

revised EA. See AR-I--40.l--4:13 1-132 (explaining that the Forest Service and the
Fish & Wildlife Service detennined that only the 1995 grizzly sighting was
credible); see also id. at 134 (table). Second, the Service bolsters its position by
relying on the lack of "other evidence of actual occupation." (Doc. 71 at 5.) For
example, Forest Service employees "spent close to 6,500 man hours in the Project
Area between 2007 and 2009 and found no evidence of grizzly bears." (ld. (citing
AR-I--40.3-7 and AR-I--40.3-21).) The Service insists the results of the
2008-2009 Bear DNA and Camera Survey's results support "the agencies'
detennination that the area is not one of recurring use because the survey did not
find any evidence of actual occupation." (Doc. 71 at 6-7 (citing AR-I--40.3 :23).)

III. Analysis
A.

Dissolving the Injunction
1.

Legal Standard

Rule 60(b)(5) ofthe Federal Rules of Civil Procedure pennits a litigant
''to obtain relief from a judgment or order if 'applying [the judgment or order]
prospectively is no longer equitable.'" Horne v. Flores, 129 S. Ct. 2579, 2593
(2009) (brackets in original) (quoting Fed. R. Civ. P. 60(b)(5)). Rule 60(b)(5)
codified courts' inherent equity power to modify an injunctive order when
circumstances make continued enforcement of the injunction inequitable. See
7

Bellevue Manor Assoc. v. United States, 165 F.3d 1249, 1252 (9th Cir. 1999); see
also United States v. Swift & Co., 286 U.S. 106, 114 (1932) (Cardozo, J.).
Supreme Court authority teaches that a party moving to dissolve an
injunction must establish '''a significant change either in factual conditions or in
law' renders continued enforcement" inequitable. Horne, 129 S. Ct. at 2593
(quoting Rufo v. Inmates ofSlfffolk Co. Jail, 502 U.s. 367,384 (1992». It is an
abuse of discretion if, after the moving party carries this burden, a court "refuses to
modify an injunction ... in light of such changes." Horne, 129 S.Ct. at 2593
(quoting Agostini v. Felton, 521 U.s. 203, 215 (1997». While these propositions
have their genesis in "institutional reform cases," the Ninth Circuit applies them to
"all Rule 60(b)(5) petitions brought on equitable grounds." Bellevue Manor, 165
F.3d at 1257.

2.

Res Judicata or Claim Preclusion

The first prong ofAlliance's challenge is that res judicata keeps the Forest
Service from raising issues not raised originally in Alliancefor the Wild Rockies.
The Service counters that res judicata principles are inapplicable where it is asking
the Court to modify an injunction due to changed circumstances. The Forest
Service is correct.
Most courts, including the Ninth Circuit, agree that res judicata does not
8

apply to Rule 60(b)(5) motions to modify or dissolve injunctions. See Bellevue

Manor, 165 F.3d at 1252 ("Rule 60(b)(5), ... creates an exception to the doctrine
of claim preclusion"); James Fisher, Understanding Remedies § 36.2 at 318, 320
(LexisNexis, 2d ed., 2006) ("The doctrine of res judicata does not bar a court from
modifying a previously entered injunction."); Kock v. Govt. of Virgin Is., 811 F .2d
240, 244-245 (3rd Cir. 1987) (reasoning that res judicata principles do not apply to
injunctive relief because "[t]he power of a court of equity to modify the prospective
effect of its decree is well established and is explicitly stated in [Rule 60(b)(5)].").
Res judicata is inapplicable here.

3.

Collateral Estoppel or Issue Preclusion

The next prong ofAlliance's legal envelopment urges the Court to hold that
the doctrine of collateral estoppel bars the Forest Service from relitigating Alliance

for the Wild Rockies' "findings regarding whether the Project will affect grizzly
bears." (Doc. 70 at 12.) This charge is met by the counter proposition that
collateral estoppel is inapplicable because the adequacy of the revised EA is
beyond the issues in Alliance for the Wild Rockies; that case only addressed the

original EA. Here again, the Forest Service is right.
Under the doctrine of collateral estoppel or issue preclusion, "once a court
decides an issue of fact or law necessary to its judgment, that decision precludes
9

relitigation of the same issue on a different cause of action between the same
parties." Montana v. United States, 440 U.S. 147, 153 (1979). The Ninth Circuit
looks to the collateral estoppel doctrine only where the party claiming preclusion
establishes:
(1 )
(2)
(3)

the issue necessarily decided at the previous proceeding is identical
to the one which is sought to be relitigated;
the first proceeding ended with a final judgment on the merits; and
the party against whom collateral estoppel is asserted was a part or
in privity with a party at the first proceeding.

Hydranautics v. FilmTec Corp., 204 F.3d 880, 880 (9th Cir. 2000). In this case,
the first element is dispositive: The Forest Service is not attempting to relitigate
an "issue" decided in Alliance for the Wild Rockies. Our circuit strictly
construes what "issue" was decided in a previous proceeding. See e.g.

Hydranautics, 204 F.2d at 885-887 (rejecting collateral estoppel claim because
while previous lawsuit's antitrust element--objectively baseless-and the
current lawsuit's malicious prosecution element-without probable
cause--were "essentially the same," they were not "identical").
Alliance insists the issues here are "identical" to Alliance because in

Alliance for the Wild Rockies the order found that the Little Beaver Project is
located in grizzly bear habitat. That determination, Alliance argues, prevents
the Forest Service from now arguing that there are no grizzly bears in the area.
10

Alliance makes too much ado in its reading of Alliance for the Wild Rockies.
There, the issue was whether the Forest Service's original EA complied with
federal law. Alliancefor the Wild Rockies, 720 F. Supp. 2d at 1204-1205. The
order made no factual determination about the actual presence ofgrizzly bears.6
Rather, Alliancefor the Wild Rockies determined that given the administrative
record, it was arbitrary and capricious for the Forest Service to conclude both
that the Project would displace bears and that no bears were present in the
Project area. !d. at 1213, 1215. While collateral estoppel would preclude the
Forest Service from relitigating whether the original Little Beaver Project EA
complied with federal law, it does not keep the Forest Service from submitting a
new EA and defending its conclusions as being legally compliant.

B.

The revised EA's compliance with the Administrative Procedures Act
The Forest Service reasons that "changed circumstances" have altered the

need for the existing injunction. It believes that because the revised EA concludes
"there are no grizzly bears in the Project Area," the Project will have "no effect" on
grizzly bears either through road construction or helicopter logging. (Doc. 66 at
11). Alliance sees the situation differently and takes the position that the

In the pending motion, the Court is again not deciding whether there are grizzly bears in
the Project area. Rather, it is deciding whether the revised EA complies with federal law.
6

11

conclusion that there are no bears in the Project area was, and is, arbitrary and
capricious.

1.

The Forest Service's conclusion is not arbitrary and capricious
because it is not a "clear error of judgment."

Whether the injunction should be dissolved under Rule 60(b)(5) depends on
whether the Forest Service's conclusion that grizzly bears are not present in the
Project area is arbitrary and capricious under the APA. 5 U.S.C. § 706(2)(A); see
also Lands Council v. McNair, 537 F3d 981, 987 (9th Cir. 2008) (applying the
APA's arbitrary and capricious standard to detennine whether a district court
abused its discretion in denying an injunction against the Forest Service). Under
the APA, "[t]he arbitrary and capricious standard is highly deferential, presuming
the agency action to be valid and requires affirming the agency action if a
reasonable basis exists for its decision." Kern Co. Farm Bureau v. Allen, 450 F 3d
1072,1076 (9th Cir. 2006) (internal brackets and quotation marks omitted).
In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971), the Supreme Court explained the substance ofthe arbitrary and capricious
standard ofreview:
The court must consider whether the decision was based on a
consideration of the relevant factors and whether there has been a
clear error ofjudgment. Although the inquiry into the facts is to be
searching and careful, the ultimate standard ofreview is a narrow one.
12

The court is not empowered to substitute its judgment for that of the
agency.
(Internal citations omitted.)
Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989), clarified

how reviewing courts are to apply this standard when there is conflicting
information about the environment impacts of a project. The proper inquiry is not
whether the court or "another decisionmaker might have reached a different result,"
but whether the agency has committed "a clear error ofjudgment." Id. at 385.
Where experts employed by the agency reasonably disagree with the conclusions of
contradictory studies, the agency has not committed a clear error ofjudgment. Id.
at 383-384.
Here, the Forest Service did not act in an arbitrary and capricious manner as
measured by the standard set forth in Citizens to Preserve Overton Park and
Marsh. The Service relies on its own data and experts to conclude that currently

there are no grizzly bears in the Little Beaver Project area, and while there is some
evidence contrary to this conclusion, there is also evidence that supports the
conclusion, and the Forest Service's interpretation of that evidence is not a clear
error ofjudgment. Notably, the Forest Service has inter-agency support for its
position-Fish & Wildlife agrees that the lack of credible grizzly sightings or other

13

evidence of grizzly occupation warranted dropping the Project area from the Clark
Fork BORZ. In Marsh, inter-agency support was sufficient to uphold an agency
decision even though it was contradicted by two separate studies. 490 U.S. at 385
(reasoning that while the decision to reject the information may have been
"disputable" it was not "arbitrary or capricious"). While another reviewer could
have come to a different conclusion in analyzing the available information, the
Forest Service's conclusion is not a "clear error ofjudgment."
Significantly the Forest Service's current position on the Project area's
inclusion in the Clark Fork BORZ is different from its position in the original
EA-the area was included in the 2002 BORZ delineation and removed from the
2010 BORZ delineation. AR-1-40.1-09:6. The APA insists that an agency
provide a "reasoned explanation" why it has changed its mind when "its new policy
rests upon factual findings that contradict those which underlay its prior policy ...

." Fed. Commun. Commn. v. Fox TV Stations, 129 S. Ct. 1800, 1811 (2009)
(upholding FCC's change in policy from punishing only the broadcast of indecent
words which are used repeatedly to punishing the broadcast of a single expletive);

see also Butte Errv. Council v. U.S. Corps ofEngins. , 620 F.3d 936, 946 (9th Cir.
2010) (noting that "agencies are entitled to change their minds" so long as they
follow the proper procedures).
14

In this case, the record provides a "reasoned explanation" for the Forest

Service's changed position. Even before the Alliance lawsuit, the agencies
recognized that the 2002 Clark Fork BORZ boundaries were "drawn broadly" and
included areas that were no longer occupied by grizzlies. AR-1-40.1-6. In
support of this conclusion, the agencies noted that there had been neither any
credible grizzly sightings nor evidence of grizzly habitation (tracks, scat, etc.) in
the area since 1995. /d. at 10; see also AR-1-40.3-1O:5; AR-1-40.1-1:6.
Moreover, Forest Service personnel spent roughly 6,500 man hours in the Project
area without a single grizzly bear sighting. AR-1-40.3-7 and AR-I-40.3-21.
And the 2008-2009 Bear DNA and Camera Survey failed to "detect any grizzly
bears in the study area." AR-1-40.3-23: 10.
The Forest Service has met its remand obligation by explaining that the
contradictions in the original EA were due to the Project area being included in the
2002 Clark Fork BORZ and looking to agency records that show there have been
no credible grizzly bear sighting since 1995. This case exemplifies the situation
where "contradictory rationales that sometimes appear in the course oflengthy and
complex administrative decisions," require only that the agency clarify its
decisionmaking thought-process on remand. Nat 'I Ass 'n.
Defonders a/Wildlife, 551 U.S. 644, 658 (2007).
15

0/Homebuilders v.

2.

The Forest Service's conclusion is not arbitrary and capricious
because it does not run counter to all the evidence in the record or
the best available science, it is not the result of the agencies'
failure to consider an important aspect of the problem, and it is
not implausible.

Alliance claims that the Forest Service's conclusion regarding the presence
of grizzlies runs afoul of Motor Vehicle Manufacturers Association ofthe United
States v. State Farm Mutual Automobile Insurance Company, 463 U.S. 29 (1983)

(hereinafter "State Farm"). There, the Supreme Court stated that an agency
decision is arbitrary and capricious ifthe agency
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.
Id. at 43.

First, Alliance asserts that the Forest Service's conclusion that there are no
grizzly bears in the Project area is counter to all ofthe evidence in the record
regarding grizzly bear presence in the Beaver Creek drainage. Ironically, the
proposition is counter to the record. There is significant evidence in the record to
support the Forest Service's conclusion that grizzlies are no longer present in the
Project area-there had not been a credible grizzly sighting or evidence of grizzly
16

habitation in the area since 1995, Forest Service employees did not find evidence
of grizzly presence during 6,500 hours of work in the area, and a recent survey
failed to detect the presence of any grizzly bears in the area. While Alliance is at
liberty to argue in opposition to the Service's decision and reasoning, it is still
bound by the record.
Second, Alliance claims that the Forest Service's decision runs counter to the
best available science in the record and that it fails to consider important aspects of
the problem. Under the ESA, agency action must be based on "the best scientific
and commercial data available." 16 U.S.C. § 1536(a)(2). The purpose ofthe best
science requirement "is to ensure that the ESA not be implemented haphazardly, on
the basis of speculation or surmise." Bennett v. Spear, 520 U.S. 154, 176 (1997).
When there are differing views as to the impact of an agency action on a protected
species, however, an agency has "discretion to rely on the reasonable opinions of
its own qualified experts even if, as an original matter, a court might find contrary
views more persuasive." Lands Council v. McNair, 537 F.3d 981, 1000 (9th Cir.
2008) (en banc). That is seemingly the case here.
The Ninth Circuit directs district courts to stay out of scientific debates. The
Ninth Circuit took Lands Council "en banc to clarify some of our environmental
jurisprudence with respect to our review ofthe actions of the United States Forest
17

Service." Id. at 984. The unanimous court noted that the Circuit's jurisprudence
with respect to scientific conclusions had, "at times, shifted away from the
appropriate standard of review ...." Id. at 988. Courts were admonished not to
act as "scientists" by instructing the Forest Service on how to "validate its
hypotheses regarding wildlife viability," choosing "among scientific studies" to
determine if the Forest Service has complied with federal law, or "order[ing] the
agency to explain every possible scientific uncertainty." Id. at 988. The Circuit
concluded that the judiciary's "proper role is simply to ensure that the Forest
Service made no 'clear error ofjudgment' that would render its action 'arbitrary
and capricious.'" Id. at 993 (quoting Marsh, 490 U.S. at 378).
The crux of Alliance's position seems to be that the Forest Service should
have to conduct additional on-the-ground studies before concluding that there are
no grizzlies in the Project area. (Doc. 70 at 21.) Lands ,Council rejected such an
approach. 537 F.3d at 990-993 (unanimously overruling precedent requiring the
Forest Service to "demonstrate the reliability of its scientific methodology" with
"on the ground analysis"). Alliance also suggests that the Forest Service should
not be able to use the 2008-2009 Bear DNA and Camera Survey to support its
position because the survey warns readers that the survey does not prove the
absence of grizzly bears in the area. That argument would have legs if the Forest
18

Service relied solely on the survey. The study's conclusion, and caveat, about the
presence of grizzly bears in the area is one piece of evidence used to show that its
conclusion is not a "clear error ofjudgment." Agencies have the "discretion to rely
on their own qualified experts" in weighing the importance and conclusions of
scientific studies. See Lands Council, 537 F.3d at 1000.
The Forest Service did not make a "clear error ofjudgment," Marsh, 490
U.S. 383-384, by asking the Court to "defer to a coin flip," (doc. 70 at 21 (quoting

Greater Yellowstone Coalition v. Servheen, 665 F.3d 1015, 1028 (9th Cir. 2011)).)
Instead it offered a reasoned choice backed up by the record. The Forest Service's
conclusion that grizzly bears are not present does not run counter to the best
scientific evidence as the record shows.
The final thrust ofthis aspect ofAlliance's argument is that the agencies'
conclusion that grizzlies are not in the Project area is arbitrary because it is
implausible. Alliance reasons it would be implausible for grizzlies, a wide­
ranging, quick-moving species, not to use or visit an area only two miles from the
Cabinet-Yaak Recovery Zone, a place that has grizzlies. The Forest Service agrees
that the Project area is only two miles away from the Recovery Zone, but it insists
that geographical and human barriers have likely kept grizzly use out ofthe area.
Here, the Forest Service's conclusion is not so implausible that it violates
19

State Farm's holding. Terrain, water barriers, human buildings, and roads could

make the Project area unoccupied by grizzlies. The Project area is also within close
proximity to private land, the Clark Fork river, and Highway 200. AR-I-40.l-2:7.
The Service's "difference in view" as to the likelihood of grizzlies using or visiting
the area is likely "a product of agency expertise." State Farm, 463 U.S. at 43.
Thus, the Forest Service's conclusion about bear use is not arbitrary and capricious
under the "implausible" prong of State Farm.
C.

The Cumulative Effects of tbe Little Beaver Project

The Forest Service's failure to state in the original EA why it was
appropriate to analyze the Project's cumulative environmental effects on the
Project level instead of forest-wide level violated NEPA and led, in part, to
enjoining the Project. Alliance for the Wild Rockies, 720 F. Supp. 2d at 1220. The
Ninth Circuit requires that the Forest Service give reasons that support its decision
"to look only at the BMU level when analyzing cumulative effects." ld. (citing
Selkirk Conservation Alliance v. Forsgren, 336 F3d 944, 960 (9th Cir. 2003».

Importantly, the Circuit views NEPA as not requiring a cumulative impact analysis
when the agency has reasonably concluded that there will be no negative impact in
the project area. See N. W. Envtl. Advocates v. Nat'[ Fisheries Serv., 460 F.3d 1125,
1140 (9th Cir. 2006) (reasoning that because the agency determined that the project
20

would not increase the salinity in the project area, NEPA did not require the agency
to analyze the cumulative impacts).
The Forest Service has complied with the remand order concerning
cumulative effects analysis. In part it has done so by explaining why its
ProjectlBMU level of analysis is proper. In the revised EA, the Service states that
it limited its analysis of the "cumulative effects" to the Project level (instead of
forest-wide level) because it is roughly the size of traditional BMUs and its size
(approximately 56,000 acres) makes it "large enough that activities occurring
outside ofthe drainage would be unlikely to result in additive effects" on the
grizzly bear population. AR 1-40.1-004:135. The Forest Service also reasons that
its BMU-Ievel analysis is sufficient because the Project is two miles away from
"the nearest occupied [grizzly] habitat and there are no project-related activities
that could result in effects to bears in those areas." ld. Moreover, because of its
reasonable conclusion that grizzly bears are not present, the cumulative impact of
the Project on grizzly bears outside the Project area is not required under N. W.
Environmental Advocates. The Forest Service has adequately explained its use of

BMU-level analysis.

D. Alliance's Alternative Claims
Alliance argues in the alternative that if there are no grizzlies bears in the
21

Project area, the Forest Service has committed an "unpermitted take" in violation of
NFMA and ESA. From this proposition, it reasons that the injunction should
remain in place. The essence of the proposition would shift the management
questions ofthe day to the courts and away from the agencies.
Courts are not free to review all agency action or inaction. The APA grants
judicial review only of "fmal agency actions." 5 U.S.C. § 704; see a/so Franklin v.

Mass., 505 U.S. 788, 796 (1992) {"The APA provides for judicial review of'fmal
agency action for which there is no other adequate remedy in a court. '" {quoting 5
U.S.C. § 704}}. The Ninth Circuit has interpreted § 704 to preclude judicial review
when the plaintiff fails to "pointO to a particular agency action ...." City ofLos

Vegas v. Clark Co., 755 F.2d 697,704 (9th Cir. 1984); see also Scott v. City of
Hammond, 741 F.2d 992,995-996 (7th Cir. 1984) (holding that complaint "failed
to state a claim for judicial review of agency action" because the complaint "d[id]
not inform the court or the parties as to what agency action is to be reviewed").
Alliance's challenge to current grizzly management in the Little Beaver
Project area fails to identify a "final agency action" under the APA. The APA
requires Alliance to identify what agency action it believes unlawfully constituted a
"take" of grizzlies. The action could not be the original Little Beaver Project or its
attendant EA because Alliance for the Wild Rockies enjoined that Project, 720 F.
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Supp. 2d at 1222. On the other hand the revised Little Beaver Project or its EA can
not be the "take" action because that project has not been implemented.
Under the plain language of § 704 and City ofLos Vegas, the argument is
"insufficient to state a claim for judicial review of agency action." 755 F.2d at 704.

V. Conclusion
The Forest Service complied with the remand requirements of Alliancefor

the Wild Rockies by addressing the contradictions in the project proposal
concerning the presence, or absence, of grizzly bears in the Project area. Thus, it is
inequitable for the injunction to remain in place in light of the agencies' remand
process.
Procedurally, the Forest Service is not estopped from defending its
conclusion that grizzly bears are not present in the Project area. Res judicata
principles do not apply to Rule 60(b)(5) motions, and collateral estoppel principles
do not apply because the Alliancefor the Wild Rockies decision did not
affirmatively decide that grizzly bears are present in the Project area. On the
merits, the Forest Service's conclusion that no grizzlies are present in the Project
area is not arbitrary or capricious because it rests on information that rationally
supports that conclusion. Finally, Alliance's claim that the injunction should stand
if there are no grizzlies left in the Project area because the Forest Service has failed
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protect the endangered species is rejected because that claim fails to identifY, or
challenge, a "final agency action."
IT IS HEREBY ORDERED that the agencies' motion to dissolve the
injunction against the Little Beaver Project (doc. 65) is GRANTED, and the
injunction is hereby dissolved.
Dated this

.!;

M
day ofApril, 20112

/ __

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~~~:~'1~f~

Donald:!y'· olloy, District Judge
Unitedj5tl1tes istrict Court

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