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

Filing 76

ORDER granting 68 Motion to Dissolve Injunction. Signed by Judge Donald W. Molloy on 4/4/2014. (NOS, )

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

FRIENDS OF THE WILD SWAN and
others,

FILED

APR 0 ~ 201~
Clerl<. u.s District Court
District Of Montana
Missoula

CV 11-12S-M-'-DWM

Plaintiffs,

ORDER

vs.
UNITED STATES FOREST SERVICE
and others,
Defendants.

INTRODUCTION

Defendant United States Forest Service filed a second motion to dissolve
the injunction in response to the Court's July 11,2012 order. (Doc. 68.) That
order included a remand to the Forest Service to prepare a Supplemental
Environmental Assessment ("SEA") regarding the cumulative effects on lynx of
the Colt Summit Restoration and Fuels Reduction Project ("the project" or "Colt
Summit Project") and an injunction preventing the implementation of the project
unless and until the SEA was completed. The injunction is dissolved for the
reasons set forth below.

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BACKGROUND

The Forest Service initially prepared an Environmental Assessment ("EA")
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 four
miles of streamside road, to construct 1,300 feet of road, to reconstruct 5.1 miles
of road, to brush and to winter haul on approximately 13.1 miles of road, to
construct 2.1 miles oftemporary and snow road, to decommission 28.4 miles of
road, to replace one and to repair one aquatic barrier culvert, and to treat noxious
weeds along approximately 34 miles of road. After reviewing the EA, the Forest
Supervisor issued a finding of no significant impact for the project.
After the project was approved, Plaintiffs brought suit and made multiple
claims for summary judgment alleging failures to comply with the National
Environmental Policy Act ("NEPA"), to ensure compliance with the forest plan
standards required by the National Forest Management Act ("NFMA"), and to
comply with Section 7 of the Endangered Species Act ("ESA"). (Docs. 30 and
31.) One aspect of Plaintiffs' motion was granted on the limited grounds that the
Forest Service violated NEPA by failing to adequately analyze the Colt Summit
Project's cumulative effects on lynx. The defendants prevailed in all other
respects. (See Doc. 50.) Within the order granting summary judgment, the Court
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deferred to the agency's determination of the scope of review to the Clearwater
Lynx Analysis Unit ("LAU"), a sufficient size to consider the project's cumulative
effects for management considerations by lynx specialists. (ld. at 41-43.) The
issue was remanded to the Forest Service "so that it may prepare a supplemental
environmental assessment consistent with this order and the law." (ld. at 46.)
On January 25, 2013, the Forest Service prepared a "supplement to the

environmental assessment" and filed a motion to dissolve the injunction. (Doc.
60.) The supplement was non-responsive so the request to dissolve was denied
because the Forest Service's document was not a required NEPA document. (Doc.
67.) The Service then prepared a Supplemental Environmental Assessment
("SEA"), and on December 19,2013, filed a second motion to dissolve the
injunction. (Doc. 68.) This motion is currently before the Court.
SUMMARY CONCLUSION

The motion to dissolve is accompanied by an SEA within the meaning of
NEPA and the NEPA regulations. The SEA analyzes the total cumulative impacts
to lynx in the Clearwater LAU although with less than ideal clarity. Plaintiffs'
objections to the July 2012 order determining the geographic scope ofthe
cumulative effects analysis cannot be considered, as the time limit for making such

3

a motion has expired pursuant to Rule 60(c)(1 ).1 The injunction will not remain in
place pending the completion of the consultation ordered in Salix, as it is beyond
the scope of the injunction to reconsider the Court's order that the ESA's Section
7 obligations were met and Plaintiffs did not show "likely and irreparable" harm
necessary to maintain an injunction.
STANDARD

Relief from a final judgment is appropriate if the judgment has been
"satisfied, released or discharged ... or applying it prospectively is no longer
equitable[.]" Fed. R. Civ. P. 60(b)(5). Rule 60(b)(5) "provides a means by which a
party can ask a court to modify or vacate a judgment or order if a significant
change either in factual conditions or in law renders continued enforcement
detrimental to the public interest." Horne v. Flores, 557 U.S. 433, 447 (2009)
(internal quotation marks and citation omitted). A party moving to dissolve an
injunction "bears the burden of establishing that changed circumstances warrant
relief." Id.

Plaintiffs also raised the same argument regarding significant new information in
their response in opposition to the frrst Motion to Dissolve Injunction on February 14,2013,
within the time limit imposed by 60(c)(J). However, 60(b) requires a request for relief from a
final Order to be made on motion.

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ANALYSIS

A.

The SEA is consistent with the Court's order and procedures
required by law.

In the first motion to dissolve the injunction, the NEPA procedures were not
followed in the submitted supplementary EA. (Doc. 50 at 46.) Here, Plaintiffs do
not object to the procedure utilized in developing this SEA. The SEA was
prepared, circulated and filed in the same manner as a draft and final statement.
The SEA followed NEPA procedural requirements. As such, the SEA is a
supplemental EA within the meaning ofNEPA and the NEPA regulations. See 40
C.F.R. § 1502.9(c)(4).

B.

The SEA analyzes the total, cumulative impacts to lynx in the
Clearwater LAU.

A review of the agency's action is deferential, "presuming the agency
action to be valid." Buckingham v. Secy. of u.s. Dept. ofAgric., 603 F.3d 1073,
1080 (9th Cir. 2010) (quoting Irvine Med. Ctr. v. Thompson, 275 F.3d 823,
830-31 (9th Cir. 2002)). It is acceptable to "uphold [an agency] decision of less
than ideal clarity if the agency's path may be reasonably discerned." Motor
Vehicle Mfrs. Ass 'n of u.s., Inc. v. St. Farm Mutual Auto. Ins. Co., 463 U.S. 29,43

(1983). In doing so, a court "may not supply a reasoned basis for the agency's
action that the agency itself has not given." SEC v. Chenery Corp., 332 U.S. 194,
5

196 (1947). Nor maya court substitute its view for that of the agency "concerning
the wisdom or prudence of a proposed action." City ofCarmel-by-the-8ea v.

us.

Dept. ofTransp., 123 F.3d 1142, 1150 (9th Cir. 1997) (quoting Or. Envtl. Council
v. Kunzman, 817 F.2d 484,492 (9th Cir. 1987)).
NEPA is procedural and it is intended to protect the environment by
fostering informed agency decision-making. See Cal. ex reI. Lockyer v. US. Dept.

ofAgric., 575 F.3d 999, 1012 (9th Cir. 2009). NEPA "does not mandate particular
results, but simply provides the necessary process to ensure that federal agencies
take a hard look at the environmental consequences of their actions." High Sierra

Hikers Assn. v. Blackwell, 390 F.3d 630, 639 (9th Cir. 2004) (citation and internal
quotation marks omitted). "Once satisfied that a proposing agency has taken a
'hard look' at a decision's environmental consequences, [the court's] review is at
an end." Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.
1992).
1.

Cumulative Impacts Analysis

A cumulative analysis under NEPA requires an analysis of the proposed
proj ect' s impact in light of that proj ect' s interaction with the effects of past,
current, and reasonably foreseeable future projects. 40 C.F .R. § 1508.7 (defining
"cumulative impact"); see Lands Council v. Powell, 395 F.3d 1019, 1027 (9th Cir.

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2005). The Forest Service may characterize cumulative effects in the aggregate
"without enumerating every past project that has affected an area." League of
Wilderness Defenders Blue Mts. Biodiversity Project v. Allen, 615 F.3d 1122,

1136 (9th Cir. 2010). "An aggregated cumulative effects analysis that includes
relevant past projects is sufficient." Ecology Ctr. v. Castaneda, 574 F.3d 652,

666-67 (9th Cir. 2009) (emphasis in original). "Cumulative impacts can result
from individually minor but collectively significant actions taking place over a
period of time." 40 C.F. R. § 1508.7. Calculating affected acres is a necessary,
but insufficient, description a project's actual expected effects. Klamath-Siskiyou
Wildlands Ctr. v. Bureau ofLand Mgt., 387 F.3d 989,994-995,997 (9th Cir.

2004) (finding NEPA requirements were not met when the project did not identify
or discuss incremental impacts or how those individual impacts combine or
synergistically interact with each other to affect the environment). Discussing
only direct effects of a project in lieu of cumulative impacts is inadequate. Id. at
994.
In this case Plaintiffs argue that although the Forest Service provided
information "regarding past, present, and foreseeable projects and activities in the
area and the total acreage affected," it did not provide a cumulative effects
analysis of the total combined environmental impacts. (Doc. 74 at 5-7.) Plaintiffs
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specifically contend no analysis was done on past regeneration harvest projects,
previous wildfires, existing winter recreation, compliance with the Lynx Direction,
thinning projects' effect on lynx movement or impact on the maintenance and
recruitment of lynx winter habitat (mature, multi-storied forest stands), hunting
and trapping, private land development, high lynx mortality rates, road impacts,
and climate change. (Id. at 9-10.) Plaintiffs also insist that the Forest Service's
environmental analysis defining lynx winter habitat is based on old science from
Alaska and Canada. (Id. at 9.)
The Forest Service met NEP A standards here. The SEA provides data on
current conditions in the Clearwater LAD. X-001:FS78952-54. 2 As stated by the
Forest Service, "present conditions do reflect the relevant aggregate effects of past
actions." (Doc. 75 at 3 (emphasis omitted).) "Past actions can be summarized to
describe present conditions (affected environment)." CEQ, Guidance on the
Consideration of Past Actions in Cumulative Effects Analysis (June 24, 2005).
The SEA also lists relevant past projects that have contributed to the current lynx
habitat conditions in the LAD, going back as far as a wildfire in 1900.
X-OOI :FS78955 (the largest recorded fires were listed, along with the number of
acres burned in lynx habitat and how those fires impact current conditions). Other
2

This format is used to remain consistent with SEA documents cited by both
parties: [Section] - [Document number] : [Bates Number].

8

current project effects were combined with past projects in the description of the
current condition of the LAU. X001:FS78969-78971 (projects within Seeley
Lake Ranger District and the Flathead National Forest were considered and found
to have no impact or no overlap in space or time). Future projects were also taken
into account. Id.; X-OOI :FS78967 (the Swan Face Ecoburn was found not likely
to impact suitable lynx habitat, even temporarily).
Plaintiffs claim that, although the Forest Service provides useful
information, there is "no analysis of the total, combined impacts." (Doc. 74 at 1.)
However, Plaintiffs ignore the lengthy discussion and summary table of
cumulative impacts in the SEA. X-001:FS78942-78982; specifically
X-001:FS78964-78967 (Table 22 is the cumulative effects table Plaintiffs argue
insufficient) X-OOI :FS78967-78980 (discussion following the table that explains
the underlying analysis used in creating the summary table). Plaintiffs insist there
is no analysis of the total combined impacts, as the bullet-point list summarizing
the cumulative analysis focuses only on the impacts of the Colt Summit Project
rather than outlining an aggregate analysis. X-OOI :FS78981. However, the table
and the overall summary are supported by hundreds of pages of data, as well as
fifteen pages of a cumulative effects analysis. The Forest Service considered
possible overlapping effects from other past, present, and future projects and

9

natural disasters such as wildfires, vegetation management, snowmobile use,
predation and starvation, surrounding private land use, and fuels reduction
projects. X-001:FS78955 (wildfire analysis and fire impacts on current
conditions); X-001 :FS 78967-78969 (vegetation management was considered in
conjunction with past regeneration, wildfire, and private land activities and
although it was found to have some impact, if falls within the Lynx Direction
standards); X-OOI :FS78974-78975, 78990 (there is no evidence indicating
snowmobiling is detrimental to lynx); X-001:FS78978 (predation and starvation
considered in conjunction with harvesting, prescribed fire, and underburning
effects on snowshoe hares); X-OOI :FS78974, 78978-78990 (private land activities
are considered in conjunction with road development and considered to have no
effect or even to reduce impediments to lynx); X-001:FS78829-78830 (thinning
considered cumulatively with wildfires); X-001:FS78853-78854 (thinning
considered in conjunction with vegetation management and private land use).
Effects on lynx habitat connectivity, snowshoe hare habitat, denning habitat
and road densities were also considered. X-OOI :FS78994-78997 (table listing
effects considered); X-OOI :FS78971-78973 (habitat connectivity considered
existing roads, private ownership, thinning and regeneration); X-OOI :FS78978 (an
examination of the beneficial effects of harvesting, prescribed fire, and
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underburning to snowshoe hares); X-001:FS78975-78976 (discussion on leaving
a mosaic of forest age and structure classes for purposes of denning and foraging);
X-OO 1:FS78973-78978 (project impacts on road densities).
Plaintiffs specifically note the analysis of trapping and hunting is
insufficient. (Doc. 74 at 9-11.) In its review of these activities, the Forest Service
found any potential impact would not be detrimental to the lynx.
X-OOI :FS078978 (finding the project would actually decrease public access,
which is likely beneficial to lynx). Therefore, any effect this would have on the
collective impact of the project is arguably beneficial and does not change the
cumulative effects analysis.
Plaintiffs have not pointed to any past action or potential significant effect
that was not considered in the aggregate cumulative effects of the Colt Summit
Project. The Forest Service has provided an analysis of overlapping effects of
past, current and foreseeable projects and impacts. Although the Forest Service
has presented the aggregate cumulative effects, and has done so with less than
ideal clarity, the path of its reasoning and what it considered can be reasonably
discerned and no additional data or supplemental analysis is needed.

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2.

The Lynx Direction as a basis for the cumulative analysis

The United States Fish and Wildlife Service listed Canada lynx as a
threatened species in March 2000, citing the main threat as a lack of guidance for
conservation. MI6-21 :FSOI4789. In 2007, the Forest Service published the
Northern Rockies Lynx Management Direction ("Lynx Direction"), which
provided guidance on lynx conservation actions on federal lands occupied by lynx.
MI6-21 :FS014779 - FS014780. The Lynx Direction lists issues to consider,
standards for management requirements, and guidelines for management actions to
meet lynx objectives. MI6-21 :FSOI4806. The Forest Service has previously
used the Lynx Direction as a basis to consider the impact of a project on wildlife
when preparing an EA under NEPA. Native Ecosystems Council v. Krueger, 946
F. Supp. 2d 1060, 1066 (D. Mont. 2013) (fmding that by "[h]aving adequately
considered the Lynx Direction in developing the Project, the Forest Service
complied with the Forest Plan and discussed the best available science for
maintaining lynx viability.").
Plaintiffs additionally argue that "[c]ompliance with the Lynx Direction is a
separate and independent obligation from NEPA's cumulative effects
requirement." (Doc. 74 at 11.) They insist that even if the Lynx Direction is
satisfied, there could still be cumulative significant impacts to lynx. (Jd.)
12

Although NEPA cumulative effects requirements and compliance with the Lynx
Direction are separate obligations, the Lynx Direction provides standards and
guidelines to meet lynx objectives, which also inform the Forest Service on what
matters in a cumulative effects analysis. (Doc. 75 at 5-6 (stating the Lynx
Direction provides "relevant and useful" indicators).) In order to determine if a
project will inflict significant harm or have a significant impact on lynx, the Forest
Service should rely on standards already in existence to determine the viability of
lynx in light ofthe current proposal. If those objectives are met, arguably a project
will not significantly harm lynx.
Plaintiffs argue, and the Forest Service emphasizes, a view that this Court
originally held that the project "did not premise consultation on the Lynx
Direction." (Doc. 74 at 28; Doc. 75 at 14-15.) However, this perception is an
inaccurate restatement of the earlier order. Friends a/the Wild Swan v.

u.s.

Forest Service, 875 F. Supp. 2d 1199, 1210 (D. Mont. 2012) (stating "[w]hile
interesting, the thesis [regarding the Lynx Direction] misses the point" and making
no further comment or holding regarding whether or not consultation was
premised on the Lynx Direction). Although falling outside the scope of the
injunction, consideration of consultation is necessary as a component of the basis
for the cumulative effects analysis in the SEA.
13

The Forest Service relied on the Lynx Direction for standards to assess the
aggregate cumulative impacts of the Colt Summit Project. The SEA mentions
designing the project to retain the natural factors associated with the primary
constituent elements ("PCEs") of lynx critical habitat. X-OOI :FS78851. In an
attempt to analyze cumulative effects, the Forest Service stated the Glacier Loon
project would reduce forage habitat. X-OOI :FS78971.3 However, the effects of a
reduced PCE was analyzed using Lynx Direction thresholds. Id. The Lynx
Direction was used as an overarching guideline to determine that the reduction in
forage habitat would not be cumulatively detrimental. Id.; XOOl:FS79059-060.
However, reliance on the Lynx Direction was justified, as it shows the Forest
Service took a "hard look" at the impacts of the Colt Summit on lynx in the
Clearwater LAU. Even though Plaintiffs do not like the result of the Forest
Service's aggregate cumulative analysis, NEPA does not require specific
outcomes, but only provides the process that agencies should use in order to take a
"hard look" at a project's impacts. The requisite "hard look" was taken here.

3

The Forest Service states the Glacier Loon project is consistent with the Lynx
Direction. They then make a conc1usory statement that because the project is within the Lynx
Direction thresholds its effects would not cumulatively be detrimental. This is a leap in logic, as
meeting the Lynx Direction thresholds does not indicate lack of cumulative effect. However, as
a final alternative for the Glacier Loon project has not been selected, the impacts of the project
are arguably undeterminable.

14

.......

C.

__. _ - - - - - - - - - - - - - ­

Plaintiffs' new significant facts regarding the expansion of the
cumulative effects analysis beyond the single, Clearwater LAU
does not support maintenance of the injunction.

Plaintiffs claim that the geographic scope of the cumulative effects analysis
needs to be expanded. The July 11,2012 order found that the Forest Service
properly determined the scope of its cumulative effects review, limiting it to the
Clearwater LAU. (Doc. 50 at 43.) Plaintiffs argue that significant new
information on lynx in the Seeley Lake area suggests the need to expand the
cumulative effects analysis beyond the single, Clearwater LAU. (Doc. 74 at
16-28.)
Under Federal Rule of Civil Procedure 60(c)(I), a motion made under Rule
60(b )(2) regarding newly discovered evidence must be made "no more than a year
after the entry of the judgment or order or the date of the proceeding." Even if
Plaintiffs properly asserted their claims in a Rule 60 motion, the time limit for
making such a motion has expired. The order and injunction now at issue date
back to July 2012. In addition, even if a motion was made within the time limit
requirement, "the Squires study" cited by Plaintiffs as their new significant
information was considered in the project. (Doc. 75 at 11.) The Squires letter
cited by Plaintiffs explains the importance of the Seeley Lake area to lynx,
including the impact of thinning and forest fragmentation. The letter does not,
15

however, contain specifics as to how much thinning would be detrimental to the
mosaic of suitable habitat for lynx, nor does it rely on new data not already
considered by the Forest Service. Finally, the Forest Service considered logging
projects noted by Plaintiffs that fall within the Clearwater LAU. (Doc. 75 at 13.)
Projects in the Clearwater LAU comply with the Lynx Direction, while projects
outside the Clearwater LAU were outside of lynx habitat. (Id.)

D.

The injunction should not remain in place pending completion of
the consultation ordered in Salix.

Plaintiffs disagree with the earlier order that the Forest Service met its
Section 7 obligations under the ESA. (Doc. 74 at 28.) Section 7(d), 16 U.S.C. §
1536(d), prohibits an agency from making, during a formal ESA consultation, an
"irreversible or irretrievable commitment of resources." Plaintiffs further argue
that Salix v. U.S. Forest Service, 944 F.Supp.2d 984 (D. Mont. 2013) controls
maintaining the injunction pending completion of consultation on how the Lynx
Direction may affect critical habitat. (Doc. 74 at 29.) Plaintiffs insist that, until
the consultation ordered in Salix occurs, the Forest Service and Fish and Wildlife
Service have yet to understand how the Lynx Direction may affect critical habitat,
which in turn may alter how Colt Summit is implemented. (Doc. 74 at 29.)

16

1.

ESA Section 7

This Court has already held that the Colt Summit project met its Section 7
ESA obligations. Friends a/the Wild Swan, 875 F. Supp. 2d 1199 at 1209. The
injunction at issue only relates to the cumulative effects analysis within NEPA. It
is beyond the scope of the current motion to reconsider that order regarding
Section 7 ESA obligations. Fed. R. Civ. P. 60(b) (requiring relief from a judgment
or order to be made on motion, no more than a year after the entry of order).

2.

Irreparable Harm

In Salix, the court declined to enjoin all projects implementing the Lynx
Direction in critical habitat without a showing of "likely and irreparable harm."
944 F. Supp. 2d at 1002. Plaintiffs have failed to make a showing of likely or
irreparable harm. There was no showing of the extent or type of harm that could
potentially occur after the required consultation ordered in Salix. (Doc. 74 at 29)
(Plaintiffs only contend that the consultation may affect critical habitat, which may
affect the implementation of Colt Summit).) Plaintiffs did not show how, ifharm
would occur by the Colt Summit Project, the harm would be irreparable. Plaintiffs
referred to Squires' statement that there is "likely a threshold of thinning below
which lynx will not be able to persist." T-101:FS73976. However, no showing

17

was made as to what that threshold would be and how the Colt Summit Project
would likely bring the Clearwater LAD below that threshold.
CONCLUSION

IT IS ORDERED that Defendants' Second Motion to Dissolve Injunction
(Doc. 68) is GRANTED. The Forest Service has complied with the July 11,2012
order (Doc. 50) requiring it prepare an SEA which includes a cumulative effects
analysis on lynx.
The Clerk is directed to notifY the parties of the entry of this order
dissolving the injunction previously entered.
Dated this ~ day of April, 2014.

P~.

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