Friends of the Wild Swan et al v. Austin et al

Filing 111

OPINION and ORDER. IT IS ORDERED that the Clerk of Court is directed to enter judgment in favor of the defendants and against the plaintiffs. IT IS FURTHER ORDERED that Plaintiffs' 99 Motion for Injunctive Relief is denied. The Clerk of Court is directed to close the case file. Signed by Judge Donald W. Molloy on 10/6/2016. (NOS, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

FILED
OCT 0 6 2016
Clerk, U.S District Court
District Of Montana
Missoula

FRIENDS OF THE WILD SWAN, a
non-profit organization; et al.,

CV 11-125-M-DWM

Plaintiffs,
OPINION
and ORDER

vs.
TIM GARCIA, in his official capacity
as Forest Supervisor for the Lolo
National Forest; et al.,
Defendants.

While this case was pending on appeal, the Ninth Circuit decided

Cottonwood Environmental Law Center v. United States Forest Service, holding
that due to procedural flaws, "the Fore st Service must reinitiate consultation on the
Lynx Amendments." 789 F.3d 1075, 1085 (9th Cir. 2015). Accordingly, in May
2016, the Ninth Circuit affirmed-in-part, reversed-in-part, and remanded this case
for the limited purpose of determining whether the Forest Service performed
sufficient independent Section 7 analysis of the Colt Summit Project to render any
reliance on the Lynx Amendments harmless. (Docs. 93, 97.) The parties briefed
the issue, and Plaintiffs requested injunctive relief. (Doc. 99.)

1

Contrary to Plaintiffs' position, Cottonwood does not establish a per se rule
invalidating all projects involving lynx pending re-initiation of consultation on the
Lynx Amendments under the Endangered Species Act ("ESA"). The Forest
Service performed sufficient independent Section 7 analysis of the Colt Summit
Project to render any reliance on the Amendments harmless. Judgment is entered
in favor of the defendants. Plaintiffs' request for injunctive relief is denied.
BACKGROUND

The Forest Service initially prepared an Environmental Assessment for the
Colt Summit Project which proposes, among other things, to manage vegetation on
2,038 acres of commercial and non-commercial land; to restore, reconstruct, and
decommission miles of roadway; to replace/repair two culverts; and to treat
noxious weeds. The Forest Supervisor issued a finding of no significant impact
and, in 2011, Plaintiffs brought suit, alleging failures to comply with the National
Environmental Policy Act ("NEPA"), the National Forest Management Act
("NFMA"), and Section 7 of the ESA. Following cross-motions for summary
judgment, the matter was remanded to the Forest Service on the narrow grounds
that it failed to adequately analyze the Project's cumulative effects on lynx under
NEPA "so that it may prepare a supplemental environmental assessment consistent
with th[ at] order and the law." (Doc. 50 at 46.)
2

In January 2013, the Forest Service prepared a "supplement to the
environmental assessment" and filed a motion to dissolve the injunction. (Doc.
60.) That motion was denied as the "supplement" was not a required NEPA
document. (Doc. 67.) The Forest Service then prepared a Supplemental
Environmental Assessment ("SEA") and, in December 2013, filed a second
motion to dissolve the injunction. (Doc. 68.) That motion was granted, (Doc. 76),
and Plaintiffs appealed, (Doc. 79). After both this Court and the Ninth Circuit
denied Plaintiffs' request for injunction pending appeal, the Project commenced
on June 23, 2014. At present, over 45% of timber harvest and post-harvest
treatments, 95% of road construction and pre-haul maintenance, and 55% of road
decommissioning have been completed. (Doc. 102 at 6.) Project activities are
expected recommence on December 1, 2016, and the Project is expected to be
substantially complete by spring 2017. (Id.)
STANDARD

The Ninth Circuit vacated this Court's determination that the Forest Service
complied with the ESA, 16 U.S.C. § 1531 et seq., in relation to the lynx and lynx
critical habitat. (Doc. 93 at 3.) Courts review claims regarding the ESA under the
Administrative Procedure Act ("APA"), 5 U.S.C. §§ 706 et seq. See Native
Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir. 2002). Under the
3

APA, a "reviewing court shall hold unlawful and set aside agency action, findings,
and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). The court's
scope of review is narrow, and the court should "not [] substitute its judgment for
that of the agency." Motor Vehicle Mfrs. Assn. of US., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). A decision is arbitrary and capricious:

only if the agency relied on factors Congress did not intend it to
consider, entirely failed to consider an important aspect of the problem,
or offered an explanation 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.
Gardner v. US. Bureau ofLand Mgmt., 638 F.3d 1217, 1224 (9th Cir. 2011). An

agency's actions are valid if it "considered the relevant factors and articulated a
rational connection between the facts found and the choices made." Id. (citation
and internal quotation marks omitted). As long as the record supports the
agency's decision, that decision should be upheld even if the record could support
alternative findings. Arkansas v. Oklahoma, 503 U.S. 91, 112-13 (1992).
ANALYSIS

The Forest Service insists that its Section 7 lynx analysis is sufficient
independent of the Lynx Amendments because also it examined the four primary
constituent elements ("PCE") of lynx critical habitat. Plaintiffs concede that the
4

Forest Service performed project-specific analysis related to the lynx but appear to
argue that Cottonwood establishes a per se rule invalidating all projects involving
lynx pending re-initiation ofESA consultation on the Lynx Amendment.
Plaintiffs are incorrect.
A.

Per Se Rule

In Alliance for the Wild Rockies v. Savage, Judge Christensen directly
addressed and rejected the idea that Cottonwood establishes "a per se rule
prohibiting timber projects from proceeding pending the [agencies] reinitiating
consultation on the Lynx Amendment." 1

_

F. Supp. 3d_, 2016 WL 3951362,

at* 10 (D. Mont. July 19, 2016) (discussing why the Cottonwood decision does
not support such a rule); see also Swan View Coalition v. Weber, 52 F. Supp. 3d
1133, 1153 (D. Mont. 2014); Native Ecosystems Council v. Krueger, 2014 WL
9954189, at *7 (D. Mont. June 4, 2014). Plaintiffs' reliance on Kern v. United

States Bureau ofLand Management, 284 F .3d 1062 (9th Cir. 2002), to argue to the
contrary is unavailing because Kern does not foreclose the possibility of sufficient

1

In Savage, the Ninth Circuit granted the plaintiffs' request for an injunction pending
appeal, citing Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). That order
includes no further analysis or findings. While Plaintiffs are correct that it means the Savage
plaintiffs showed a likelihood of success on the merits (or at the very least serious questions as to
the merits), Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011), that
project, and its potential impact on lynx, is different from the one here. Judge Christensen's
decision in Savage remains persuasive.
5

independent analysis. Moreover, the Ninth Circuit's language and the nature of
the remand order in this case undercuts Plaintiffs' interpretation. If the Fore st
Service's project-specific analysis could not be sufficient regardless of whether it
relied on the Lynx Amendments or not, it would be pointless to ask this Court to
decide that very question.

B.

Independent ESA Analysis

There is no question that the Forest Service relied on and used the Lynx
Amendments in performing its Section 7 obligations. (See Doc. 50 at 17-20; Doc.
76 at 12-14.) Nonetheless, the Forest Service performed sufficient independent
analysis as to render that reliance harmless. Under Section 7(a)(2) of the ESA, the
Forest Service is required to ensure, in consultation with the Fish and Wildlife
Service, that the Colt Summit Project "is not likely to jeopardize the continued
existence" of the lynx, or "result in the destruction or adverse modification of'
lynx critical habitat. 16 U.S.C. § 1536(a)(2). Because the Forest Service
concluded the Project "may affect" lynx and lynx critical habitat, it was required to
consult with the Fish and Wildlife Service. 50 C.F.R. § 402.14(a). During that
informal consultation, the Forest Service prepared a "biological assessment" to
evaluate the potential effects of the Project on lynx and lynx critical habitat to
determine whether they "are likely to be adversely affected by the action." 50
6

C.F.R. § 402.13; K-26. After requesting the Forest Service prepare an additional
"PCE table" addressing how the Project would affect lynx critical habitat, K32:FS001547, the Fish and Wildlife Service concurred with the Forest Service's
determination of"not likely to adversely affect," K-26:FS001490; K33:FS001555-57, and no formal ESA consultation occurred, see 50 C.F.R.
§ 402.13(a). An action "is not likely to adversely affect" a listed species when the
effects "are expected to be discountable, insignificant, or completely beneficial."
Final ESA Section 7 Consultation Handbook xv (1998).
The Forest Service's Section 7 analysis for the lynx primarily manifested in
two documents in the Administrative Record: the initial January 2011 biological
assessment, K-26, and the February 2011 PCE table created at the request of the
Fish and Wildlife Service, K-32. 2 According to the 2011 Biological Assessment,
while there are lynx and lynx critical habitat in the Project area, the habitat
conditions and lynx populations vary with elevation and aspect. K-26:FS001478.
Overall, stands at lower elevations "do not represent potential lynx habitat" as they
have relatively open understories. Id. With increasing elevation, the understories
become more complex and are considered to be suitable lynx habitat. Id. at
FS001478-79. Generally, habitat conditions for lynx in this area are good at
2

See also Ml6-45:FS015209-23 (Wildlife Report).
7

elevations above 6,000 feet. Id. at FS001479. The Assessment notes that the
Project falls below the 6,000-foot elevation preferred by lynx, id. at FS001479,
and explains that"mature, multi-storied forests with high horizontal cover in the
understory" were not selected because they are important to lynx foraging habitat.
Id. at FS001484. Using Lynx Amendment guideposts, the Assessment discussed

elevation, vegetative structures, snowshoe hare habitat, snow compaction, and
habitat connectivity. Id. at FS001477-85.
The Forest Service's brief on remand includes a thorough explanation for
how the analysis included in the Assessment, which was initially framed in the
context of the Lynx Amendment, overlapped an independent PCE-based approach.
(See Doc. 102 at 9-14.) The PCE table analyzes the four PCE components of lynx

critical habitat: (la) presence of snowshoe hares and their preferred habitat of
dense understories; (lb) deep and fluffy snow; (le) denning habitat with woody
debris; and (Id) matrix habitat facilitating travel between patches of foraging. K32:FS001554. The table explains that the "areas proposed for mechanical
treatment, slashing and underbuming are not high quality snowshoe hare habitat"
(la); that the lower, drier elevation of the Project area is not preferred for lynx
habitat ( 1b ); that the area is not characterized as high quality denning habitat and
is used less by lynx than adjacent areas ( 1c); and that while lynx move through the
8

area, connectivity will be maintained (ld). Id. The Forest Service also considered
data collected from GPS collars and from ground-based and aerial radio telemetry
using convention VHF collars to show the habitat selected by lynx in the area. Id.
at FS001553. This dataset supports the conclusion that the lynx use the drierlower elevations of the Project area less and that the Project area is not itself high
quality lynx habitat. Id. After reviewing the PCE table, the Fish and Wildlife
Service concurred that the effects of the Project on lynx and lynx critical habitat
would be "insignificant." K-33:FS001555-57.
Plaintiffs' only argument is that this analysis is not sufficient under the ESA
because it lacks programmatic consideration in the absence of the Lynx
Amendment. While this is not a per se bar to BSA-compliance, as discussed
above, it could be insufficient if it meant the agencies failed to consider an
important aspect of the problem or offered an explanation that runs counter to the
evidence. Gardner, 638 F.3d at 1224. That is not the case here, however, as the
agencies considered lynx populations and movements outside the Project area, K32:FS001549, 1552 (depicting lynx locations in the Seeley area); id. at FS001551
(depicting lynx locations in the Missoula, Seeley-Swan, Ovando, and Flathead
valleys), and habitat features throughout the area surrounding the Project, id. at
FS001550, to conclude that the Project area was not "high quality lynx habitat,"
9

id. at FS001553. See also Supp. EA, XOOl :FS078951-53, FS078956-60. Even

stripped of reliance on the Lynx Amendments, this analysis supports the agencies'
conclusion that the Project will "not adversely modify or adversely affect lynx
critical habitat." K-26:FS001490; K-33: FS001556-57.
Plaintiffs' remaining arguments are equally unpersuasive. Plaintiffs'
geographic scope argument was addressed and rejected on appeal. (See Doc. 93 at
1-2 ("The Forest Service appropriately justified its decision to look only at the
Clearwater Lynx Analysis Unit in measuring the Project's impact on the lynx and
its critical habitat .... ").) Plaintiffs also rely on the recently released Kosterman
Study to argue the Forest Service failed to properly consider the quantitative
habitat needs of lynx. While the ESA requires agency action to be based on "the
best scientific and commercial data available," 16 U.S.C. § 1536(a)(2), Plaintiffs'
citation to an extra-record, post-decisional study does not show that the agencies
failed to do so here. See Kern Cnty. Farm Bureau v. Allen, 450 F .3d 1072, 1080
(9th Cir. 2006) ("The best available data requirement merely prohibits an agency
from disregarding available scientific evidence that is in some way better than the
evidence it relies on." (internal quotation marks and edits omitted)).
CONCLUSION

The agencies' conclusion that the Project is not likely to adversely affect the
10

lynx and lynx critical habitat is reasonable and supported by independent facts and
analyses, rendering any reliance on the Lynx Amendment harmless. The agencies
met their obligations under Section 7.
Accordingly, IT IS ORDERED that the Clerk of Court is directed to enter
judgment in favor of the defendants and against the plaintiffs.
IT IS FURTHER ORDERED that Plaintiffs' motion for injunctive relief
(Doc. 99) is DENIED. The Clerk of Court is directed to close the case file.
Dated this

'_k_ day of October, 2016.

/
--------------------~-:
olloy, District Judge
District Court

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