Native Ecosystems Council et al v. Christiansen et al
Filing
73
ORDER denying 55 Motion to Dissolve Injunction. Signed by Judge Dana L. Christensen on 10/15/2018. (ASG)
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
NATIVE ECOSYSTEMS COUNCIL,
and ALLIANCE FOR THE WILD
ROCKIES,
OCT 15 2018
Clerk, U.S Oiltrid Court
District Of Monblna
Missoula
CV 12-27-M-DLC
ORDER
Plaintiffs,
vs.
FAYE KRUEGER, Regional Forester
of Region One of the United States
Forest Service, UNITED STATES
FOREST SERVICE, an agency of the
United States Department of
Agriculture, and UNITED STATES
FISH AND WILDLIFE SERVICE, an
agency of the United States
Department of Interior,
Defendants.
Before the Court is Federal Defendants' Motion to Alter Judgment and
Dissolve Injunction (Doc. 55).
On May 24, 2013, this Court enjoined the Fleecer
Mountains Project ("the Project") until the Forest Service and Fish and Wildlife
Service ("FWS") corrected certain deficiencies under the National Environmental
Policy Act ("NEPA") and the Endangered Species Act ("ESA") identified in this
Court's remand order.
(Doc. 27.)
-1-
There, Plaintiffs claimed that the Project and the Beaverhead-Deerlodge
National Forest Plan ("Forest Plan") violated various environmental laws because
the Forest Service failed to complete consultation with the FWS regarding the
potential effects of the "Project and Plan on grizzly bears and Canada lynx."
Native Ecosystems Council v. Krueger, 946 F. Supp. 2d 1060, 1066 (D. Mont.
2013).
In addition, Plaintiffs argued that the Forest Plan and Project failed to
disclose and apply the best available science in its decision to exclude temporary,
permitted, and administrative roads from road density calculations and failed to
discuss the impact of temporary roads on elk.
Id.
This Court agreed, and
enjoined the Project until the Forest Service and FWS corrected the deficiencies
pertaining to lynx, grizzly bears, roads, and elk.
Id. at 1067.
For the reasons explained, the Court denies the motion to dissolve the
injunction.
The Court will address each issue below.
LEGAL STANDARD
This Court "retains the power to modify the terms of its injunction in the
event that changed circumstances require it."
United States v. Oregon, 769 F.2d
1410, 1416 (9th Cir. 1985) (citations omitted).
A court may "relieve a party or its
legal representative from a final judgment, order, or proceeding [it] the judgment
has been satisfied, released or discharged."
Fed. R. Civ. P. 60 (b)(S).
A party
seeking a dissolution of an injunction may demonstrate that the change is
-2-
warranted by showing "a significant change either in factual conditions or in law."
Alliance for the Wild Rockies v. Weldon, 2011WL3348000, at *2 (D. Mont. Aug.
3, 2011) (quoting Rufo v. Inmates ofSuffolk County Jail, 502 U.S. 367, 384
(1992)).
A significant change in facts occurs when a party demonstrates its
compliance with a court's remand order.
Sharp v. Weston, 233 F.3d 1166, 1170
(9th Cir. 2000).
DISCUSSION
I.
Lynx
In its remand order, the Court instructed the agencies "to consider whether
lynx 'may be present' in the Forest" and to "complete any consultation that might
become necessary" as a result of that determination.
946 F. Supp. 2d at 1067 (emphasis added).
Native Ecosystems Council,
The FWS subsequently determined
that lynx "may be present" across the Beaverhead-Deerlodge National Forest.
(Doc. 56-7 at 1.)
This caused the Forest Service to develop and issue a biological
assessment in which the agency concluded that the Project "may affect, but is not
likely to adversely affect" lynx.
(Doc. 56-8 at 1, 3-4.)
The FWS concurred.
(Id.)
Federal Defendants now argue that the Court should lift the injunction
because the agencies have complied with the Court's remand instructions.
56 at 6.)
(Doc.
Plaintiffs disagree, and argue that the site-specific biological assessment
-3-
is insufficient because it does not examine the effects that the Forest Plan may
have on lynx.
(Doc. 63 at 28.)
Plaintiffs argue that forest-wide consultation
became necessary when the FWS determined that lynx "may be present" across the
entire Beaverhead-Deerlodge National Forest.
(Id. at 29.)
In light of this
unfulfilled requirement, Plaintiffs assert that the Project must remain enjoined until
Federal Defendants fully comply with the Court's order.
(Id. at 30.)
In
response, Federal Defendants assert that this Court never ordered a programmatic
consult and that such consult never became "necessary."
(Doc. 65 at 13.)
Federal Defendants further argue that even ifthe Court determines that forest-wide
consultation was and is required, the Court could still allow the Project to go
forward.
(Id. at 14.)
Federal Defendants final argument misconstrues the standard of review.
The narrow question before the Court is whether Federal Defendants fully
complied with the remand order.
For reasons more fully explained, the Court
concludes that it did not.
From the beginning, Plaintiffs asserted both a site-specific and
programmatic challenge concerning lynx.
See Native Ecosystems Council, 946 F.
Supp. 2d at 1066 ("Plaintiffs claim that the Project and the Forest Plan violate
Section 7 of the Endangered Species Act").
Neither party disputes that the Forest
Service and FWS discharged their obligations concerning the Project.
-4-
(Docs. 56
at 9; 63 at 29.)
The issue is whether the FWS 's determination that lynx "may be
present" on the Beaverhead-Deerlodge National Forest rendered forest-wide
consult necessary.
To determine what is necessary, the Court turns to the ESA
and its implementing regulations.
"The ESA requires the Secretary of the Interior to promulgate regulations
listing those species of animals that are 'threatened' or 'endangered' under
specified criteria, and to designate their 'critical habitat."'
U.S. 154, 157-58 (1997) (citing to 16 U.S.C. § 1533).
Bennett v. Spear, 520
The ESA also requires
each federal agency to ensure that an agency action is not likely to jeopardize the
continued existence of a threatened or endangered species.
1536(a)(2).
16 U.S.C. §
An "action" is "all activities or programs of any kind authorized,
funded, or carried out ... by Federal agencies."
plans constitute ongoing agency action.
50 C.F.R. § 402.02.
Forest
Pacific Rivers Council v. Thomas, 30
F.3d 1050, 1053 (9th Cir. 1994); Lane County Audubon Soc 'y v. Jamison, 958 F.2d
290, 293 (9th Cir. 1992); Salix v. US. Forest Serv., 944 F. Supp. 2d 984, 986 (D.
Mont. 2013) afj"d in part, rev'd in part sub. nom. Cottonwood Envtl. Law Ctr. v.
US. Forest Serv., 789 F.3d 1075 (9th Cir. 2015) (stating that "Pacific Rivers
remains good law in this Circuit" and holding that a programmatic plan is subject
to section 7 consultation in certain circumstances).
The Forest Service's first step in complying with section 7 is to obtain from
-5-
the FWS "a list of any listed or proposed species or designated or proposed critical
habitat that may be present in the action area."
§ 402.12(c)-(d) (emphasis added).
16 U.S.C. § 1536(c)(l); 50 C.F.R.
If the FWS advises that a listed species or
critical habitat "may be present," the Forest Service must complete a biological
assessment to determine if the proposed action "may affect" or is "likely to
adversely affect" the listed species.
16 U.S.C. § 1536(c)(l); 50 C.F.R. §§
402.12(t), 402.14(a), (b)(l); Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th
Cir. 2006).
If the Forest Service determines that an action "may affect" a listed
species, the Forest Service must consult with the FWS under section 7 of the ESA.
Karuk Tribe o/Cal. v. US. Forest Serv., 681F.3d1006, 1027 (9th Cir. 2012).
Consultation may be formal or informal.
Cal., 681 F.3d at 1027.
50 C.F.R. § 402.14; Karuk Tribe of
Formal consultation is obligatory where the Forest
Service has determined that an action is "likely to adversely affect a listed
species."
50 C.F.R. § 402.14 (a)-(b).
But where the Forest Service determines
that an action "may affect ... [but is] not likely to ... adversely affect[]" a listed
species, the Forest Service may initiate informal consultation.
402.14(a), 402.12(a).
50 C.F.R. §§
If the FWS concurs with the Forest Service's determination
that a listed species "is not likely to be adversely affected," both agencies have
fulfilled their respective obligations and the federal action may proceed.
C.F.R. § 402.13(a).
-6-
50
As indicated by Pacific Rivers Council and Lane County Audubon Society,
the Beaverhead-Deerlodge National Forest Plan is an ongoing agency action that
falls within the purview of the ESA, therefore requiring consultation with the FWS
to determine whether any listed species may be present within the forest.
In
response to this Court's remand order, the FWS issued a new species list for the
entire Beaverhead-Deerlodge National Forest, and determined that Lynx "may be
present" on the forest as secondary or peripheral lynx habitat.
(Doc. 56-7 at 1.)
The FWS placed no geographic limitation on where lynx "may be present" as it did
with bull trout (which "may be present" in the Clark Fork, Flathead, Kootenai, St.
Mary, and Bell river basins, including cold water rivers and lakes) and wolverines
(which "may be present" in high elevation alpine and boreal forests that are cold
and receive enough winter precipitation to reliably maintain deep persistent snow
late into the warm season).
(Id.)
For this reason, the logical conclusion is that
the FWS 's determination indicates that lynx "may be present" across the entire
forest.
This was new information.
Whereas the agencies had previously measured
the potential effects of the Forest Plan on grizzly bears, bull trout, and wolves, the
same was not done for lynx.
(Doc. 63 at 28.)
Therefore, unless there is some
other reason why a biological assessment or biological opinion was not required to
determine whether the Forest Plan "may affect" lynx, Federal Defendants have not
-7-
fulfilled their obligation under the Court's remand order.
At a hearing on this motion, Federal Defendants argued for the first time that
programmatic consultation for lynx was not required because the FWS recently
issued a biological opinion and determined that the Lynx Amendment is not likely
to adversely affect lynx.
The Lynx Amendment sets programmatic direction to
protect lynx from certain actions that are likely to adversely impact lynx habitat.
Cottonwood Envtl. Law Ctr., 789 F.3d at 1078.
The Lynx Amendment has been
incorporated into eighteen national forest plans.
Id.
At the hearing, Federal
Defendants indicated that the Lynx Amendment standards were incorporated into
the Beaverhead-Deerlodge National Forest Plan in 2009.
Without citation to any
legal authority, Federal Defendants argue that this consultation satisfies any further
need for forest-wide analysis.
It is true that the Ninth Circuit's recent opinion in Alliance for the Wild
Rockies v. Savage concluded that a plaintiffs section 7 Lynx Amendment
consultation claim was moot in light of the FWS 's recent biological opinion
measuring the effects of the Lynx Amendment on lynx and lynx critical habitat.
897 F.3d 1025, 1029, 1031 (9th Cir. 2018).
However, the holding in Savage does
not render any and all programmatic challenges concerning lynx moot.
Savage is
limited to section 7 claims within areas governed by the Lynx Amendment,
namely, Lynx Analysis Units.
Because there are provisions of the Forest Plan
-8-
other than the Lynx Amendment that "may affect" lynx outside of the areas
protected by the Lynx Amendment, and because the FWS determined that lynx
"may be present" throughout the forest, a plaintiff may still bring a section 7
consultation claim to the broader Forest Plan itself.
See Native Ecosystems
Council v. Marten, 2018 WL 3831339, at *4 (D. Mont. Aug. 13, 2018) (stating that
"the Lynx Amendment only applies to mapped lynx habitat on National Forest
System land presently occupied by Canada lynx" and holding that a forest-wide
determination that lynx "may be present" arguably requires consultation of an
agency action that "may affect" lynx but where "compliance with the Lynx
Amendment is not required.")
Such is the case here.
From the beginning, Plaintiffs have raised a programmatic challenge.
Native Ecosystems Council, 946 F. Supp. 2d at 1066.
The FWS subsequently
determined that lynx "may be present" across the entire forest.
(Doc. 56-7 at 1.)
The consultation regulations make clear that this determination rendered
consultation necessary for any agency action-here, the Forest Plan-that may
affect a listed species. 16 U.S.C. § 1536(c)(l); 50 C.F.R. §§ 402.12(f), 402.14(a),
(b)(l); Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir. 2006).
wide consultation on lynx has not been done.
Forest-
(Doc. 63 at 28.)
Turning to the narrow question before the Court, whether Federal
Defendants have fulfilled everything necessary to set aside the injunction, the
-9-
answer is no.
The Fleecer Project will remain enjoined until Federal Defendants
complete forest-wide consultation to determine what effects, if any, the Forest Plan
may have on lynx.
II.
Grizzly Bears
On remand, this Court instructed the Forest Service to prepare a new
biological assessment to determine "whether the Project 'may affect' grizzly
bears."
Native Ecosystems Council, 946 F. Supp. 2d at 1067.
Both parties agree
that the Court's instructions were followed, a new biological assessment was
prepared, and the FWS concurred in its result.
(Docs. 56 at 8-9, 63 at 31.)
The
Court agrees with the parties and concludes that Federal Defendants have met their
burden to show compliance with the Court's remand order.
No further action is
necessary as it relates to grizzly bears.
III.
Roads
This Court also instructed the Forest Service to "supplement its EIS for the
Forest Plan to explain or support, if possible, its decision to exclude temporary
roads from the road density objectives and to correct the record to show that
permitted and administrative roads are included in the objectives."
Ecosystems Council, 946 F. Supp. 2d at 1067.
clarification necessary for two reasons.
Native
The Court considered this
First, it appeared there was a typo in
Forest Plan EIS concerning what was included in the road density objectives.
-10-
Id.
The Court noted that "[e]ach table in the Forest Plan that lays out year-round or fall
road density objectives includes a footnote indicating that roads that are only open
to permitted and administrative use are not included."
added).
Id. at 1087 (emphasis
If true, this practice deviates from the best available science on the
subject, which indicates that "[a]ny motorized vehicle use on roads will reduce
habitat effectiveness ... including administrative use."
Id.
However, through
context, it appeared as if this footnote was a typo-meaning, the sentence should
have read "administrative and permitted roads are included," rendering the Forest
Service's treatment of road density consistent with the best available science.
Accordingly, the Court instructed the Forest Service to Supplement the EIS to
clarify whether administrative and permitted roads were included in road density
calculations.
Id. at 1088.
Additionally, the Court was concerned that the Forest Service's exclusion of
temporary roads from road density objectives also conflicted with the best
available science.
Id.
There was nothing in the Forest Plan EIS that explained
why temporary roads should not be treated in the same way as all other roads,
given that "[a]ny motorized vehicle use on roads will reduce habitat effectiveness."
Id.
The Court remanded the EIS to "explain or support" this decision.
A.
Id.
Administrative and Permitted Roads
To clarify its typo, the Forest Service issued a Forest Plan Errata.
-11-
(Doc.
56-5.)
This ten-page document replaced certain pages in the original Forest Plan
in order to clarify that permitted and administrative roads were, in fact, included in
the original road density objectives.
(Id. at 1.) Approximately a year later, the
Forest Service issued its Final Supplemental Environmental Impact Statement for
the Forest Plan ("FSEIS"), again clarifying that permitted and administrative roads
were included in the road density objectives and explaining its decision to exclude
temporary roads.
(Doc. 56-3.)
Plaintiffs now argue that the Forest Service did not comply with the Court's
remand, taking objection to the form of this correction rather than its substance.
Plaintiffs argue that the Forest Service was instructed to address administrative and
permitted roads in a Supplemental EIS, and instead, issued the correction in the
Forest Plan Errata, a non-NEPA document.
(Doc. 63 at 9-11.)
Plaintiffs urge
the Court to follow its reasoning in Friends of Wild Swan v. US. Forest Service,
2013 WL 1295339 (D. Mont. 2013), and demand NEPA compliance.
In Friends of Wild Swan, the Court denied the Forest Service's motion to
dissolve an injunction because the Court had ordered a supplemental EA and the
Forest Service instead prepared a supplement to the EA.
Id. at * 1.
By the
agencies own admission, the supplement to the EA did not conform with NEPA
regulations.
Id.
The Court determined that this failure was substantial because
NEPA serves important procedural ends. Id.
-12-
Allowing the Forest Service to
skirt its NEPA obligations would "render the Forest Service's own rules ...
superfluous."
Id.
The court was not persuaded by the Forest Service's attempts
to argue that the "supplement to the EA" substantially complied with NEPA-like
procedures because the agency allowed a public comment period.
Id. at *2.
The Forest Service argues that Friends of Wild Swan should not govern this
decision because an errata is the proper mechanism to make an administrative
change, which includes correcting clerical errors to any part of the plan and
because the agency fulfilled its obligations in the SFEIS.
(Doc. 65 at 4-5 (citing
to 36 C.F.R. § 219.13(c)).)
The Court agrees that Friends of Wild Swan is not controlling.
First, unlike
the substantive deficiency there (an inadequate cumulative effects analysis), the
error here was typographical. The Court agrees with the Forest Service that the
change made in the Errata was an "administrative change" rather than a "plan
amendment" or "plan revision."
See 36 C.F.R. § 219.13(c).
Therefore,
correcting the typo with an errata was not improper under NEPA.
Regardless,
Plaintiffs are incorrect that the Forest Service failed to comply with the Court's
instruction to clarify the treatment of permitted and administrative roads in a
Supplemental EIS.
While the Forest Service issued this correction in the Errata
first, it also clarified its treatment of administrative and permitted roads by
amending the definition of open motorized road and trail density ("OMRTD")
-13-
within the SFEIS.
Swan inapposite.
(Doc. 56-3 at 8, n.6.)
This alone makes Friends of Wild
For these reasons, the Court finds that the Forest Service
complied with the Court's remand instructions and no further action is required on
the issue of administrative and permitted roads.
B.
Temporary Roads
Additionally, this Court instructed the Forest Service to "supplement its EIS
for the Forest Plan to explain or support, if possible, its decision to exclude
temporary roads from the road density objectives."
946 F. Supp. 2d at 1067.
Native Ecosystems Council,
Plaintiffs now argue that the Forest Service failed to
comply with the Court's remand instructions, because instead of explaining or
supporting its decision to exclude temporary roads, the SFEIS merely "discloses
the effect of not including temporary roads in [road density calculations] on the
eight key issues contained in the Forest Plan itself."
(Doc. 56-3 at 13).
Plaintiffs maintain that temporary roads should be included in OMRTD objectives
and that the SFEIS fails to address why its decision to exclude temporary roads
does not run afoul of "Christensen et. al. (1993 ), a study the parties agree is among
the best available science on the subject of protecting elk habitat."
Ecosystems Council, 946 F. Supp. 2d at 1083.
Native
Christensen recommends that
"[a]ny motorized vehicle use on roads will reduce habitat effectiveness.
Recognize and deal with all forms of motorized vehicles and all uses, including
-14-
administrative use."
Id. at 1087.
In addition, Plaintiffs revive its argument
above, taking issue with the document titled "Explanation Supporting Not
Including Temporary Roads in Open Motorized Road and Trail Densities,"
("Explanation Supporting"), as a "stand alone" non-NEPA document.
(Doc. 63 at
14.)
Addressing the last argument first, the Court disagrees that the Explanation
Supporting document demonstrates a lack of compliance with the Court's order.
The Explanation Supporting document is the Reader's Digest version of the
changes that the Forest Service made in its SFEIS to address the Court's concerns.
While helpful, the document is not necessary: it contains no information that is not
already contained within the SFEIS.
Therefore, the Court will focus its attention
on whether the changes in the SFEIS adequately "explain or support" the decision
to exclude temporary roads.
In its remand order, the Court noted two particular deficiencies pertaining to
temporary roads.
First, the Court observed that the Forest Service's insistence
that temporary roads should not be included in OMRTD was not supported by
Christensen.
Id. at 1088.
It also observed that the definitions section did not
support the exclusion of temporary roads because it drew no meaningful distinction
between temporary roads as compared to administrative and permitted roads.
Id.
Accordingly, the Forest Service created a new definition of road density that
-15-
adequately distinguished a temporary road from an administrative or permitted
road. 1 The definition explains that temporary roads are obliterated at project
completion, whereas administrative and permitted roads are not.
Additionally, the SFEIS reconciles its treatment of temporary roads with the
best available science.
Christensen recognizes that any motorized vehicle use
reduces habitat effectiveness.
Id.
The general purpose of a road density
objective is to "address the issue of habitat security, connectivity and linkage."
(Doc. 56-3 at 29.)
The goals developed in the OMRTD "address the long term
desired condition of secure areas" across the entire forest.
(Id.)
However, the
SFEIS recognizes that OMRTD does not convey a complete figure of habitat
security, because "[p]otential, short-term wildlife displacement from the use and
construction of [a] ... temporary road is influenced by a number of factors."
(Id.)
For example, even a temporary road that is completely obliterated upon project
completion, may still "displace wildlife from secure areas when located in, or near,
a secure area" depending on the site-specific terrain and other relevant features.
(Id. at 28.)
1
Therefore, the Forest Service's decision to exclude temporary roads
The new definition reads:
OMRTD is a measurement of motorized routes open to use, measured at the completion of
project implementation in miles per square mile. It consists of motorized roads and trails that
fall within the external forest boundary and are (1) open to public motorized use, (2) open for
permitted and/or administrative use and remain on the landscape, (3) temporary unless
obliterated at project completion, and (4) motorized routes on private inholdings.
-16-
from OMRTD recognizes that the effects of temporary roads are best determined at
the site-specific, rather than programmatic level.
(Id.)
Further, because the
intent of programmatic management is based on addressing long-term goals and
because temporary roads are "obliterated at project completion," the decision to
exclude OMRTD aligns with the Forest Service's purpose for measuring OMRTD
and its decision to calculate OMRTD at project completion.
Having reviewed the Forest Service's treatment of temporary roads in
relation to the best available science as explained and supported by the SFEIS, the
Court concludes that the Forest Service has fully complied with the Court's
instruction on this matter.
IV.
Elk
This Court also instructed the Forest Service to "supplement [the EA] with a
full and fair discussion of the impact that temporary roads will have on elk during
the Project's lifetime."
Native Ecosystems Council, 946 F. Supp. 2d at 1067.
This was important because road density levels were already above OMRTD in the
Project area and elk populations were below state objectives in the two hunting
units that bisect the Project.
Id.
Without analysis of the effects that temporary
roads might have on elk security-and by extension---elk population, this Court
determined that the Project EA "entirely failed to consider an important aspect of
the problem."
Id. (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.
-17-
2008) overruled by Winter v. Natural Resources Def Council, Inc., 555 U.S. 7,
129 (2008)).
The Forest Service now argues that it has complied with the Court's order
because its recently-completed 444-page supplemental EA corrects the deficiencies
noted by addressing the five factors which bear on whether a temporary road is
likely to cause short-term displacement to wildlife ("wildlife displacement
factors"), including: (1) the length of the road; (2) proximity of the road to a secure
area; (3) time of year the road is being used; (4) length of time the road is used; (5)
vegetation and terrain.
(Docs. 56 at 7; 56-1 at 91.)
Plaintiffs observe that the actual discussion of temporary roads is quite
limited.
(See Doc. 63 at 15-27.)
Of the twenty-two pages in the SEA that the
Forest Service indicates contains the required discussion, Plaintiffs accurately
demonstrate that little more than two paragraphs actually contain analysis of the
temporary roads proposed by the Project in light of the five factors that pertain to
wildlife displacement. 2
(See Docs. 63 at 15-27; 63-1at22; 63-2.)
Plaintiffs' argument has merit.
Though, as a whole, the SEA examines the
2
Only one of these two paragraphs is actually directed to the discussion of temporary
roads. (See Doc. 63-1 at 22.) The paragraph detailing the possible effects of the temporary road
segment accessing Unit 60 will not be considered because it is not a temporary road. The
explanation explains that this road segment is a level 1 road, meaning that it is closed yearlong to
wheeled motorized use, but contains no indication that it will be obliterated at project
completion.
-18-
impact of temporary roads in greater detail, the specific discussion of the impact
that temporary roads will have on elk, particularly in light of the "already-high
road density, combined with the increase in temporary roads and temporary
decrease in summer secure habitat ... during the Project's five to ten year
lifetime" is extremely thin.
(Compare Docs. 63-1 and 63-2.)
As Plaintiffs note,
of the 5.88 miles of temporary road disclosed by the SEA-which seems to include
at least 12 new road segments--only one of these temporary roads is discussed in
particular detail.
(See Doc. 63-1 at 4-5, 6, 22.)
While the SEA provides
considerable detail regarding the 4.3 7 miles of temporary road built to access
lodgepole pine salvage harvest units, including road length, pertinent restrictions,
and rationale (see Table 9, Doc. 63-1 at 4), the SEA provides no comparable
information for the 1.51 miles of temporary road built to access Douglas-fir
commercial thin units.
Nor does the SEA acknowledge or explain why no
comparable table exists.
Moreover, given the Court's instruction on remand to provide a "full and fair
discussion of the impact that temporary roads will have on elk during the Project's
lifetime," and, in light of the Forest Service's disclosure of the five wildlife
displacement factors, one might expect to see a table or narrative description that
addresses each of these five factors as they pertain to each of the twelve or more
road segments.
No such table or narrative analysis exists.
-19-
It is difficult to
square the absence of such disclosure with the Court's instruction to include a "full
and fair" discussion.
And yet, the Court is mindful that an EA does not require the same level of
detail as an EIS.
As compared to an EIS, an
EA is a more concise document whose purpose is to briefly provide
sufficient evidence and analysis for determining whether to prepare an
environmental impact statement ... an EA must contain a discussion of
the need for the proposed action, potential alternatives to the project, a
discussion of the environmental impacts of the project and the alternatives
... demonstrate that the agency took the required "hard look" at the
environmental consequences of the project before concluding that those
impacts were insignificant.
Sierra Nevada Forest Prat. Campaign v. Weingard!, 376 F. Supp. 2d 984, 990-91
(E.D. Cal. 2005) (internal quotation marks, alterations, and citations omitted).
In addition to the discussion of the temporary road accessing Unit 37, the
SEA's broader discussion of temporary roads clarified a few things that were not
contained in the original EA.
For starters, at the time of its remand order, the
Court did not know whether the Forest Service's decision to exclude temporary
roads from OMRTD deviated from the best available science.
Council, 946 F. Supp. 2d at 1088.
Native Ecosystems
The Forest Service has now clarified the Forest
Plan to explain that this decision is consistent with Christensen because temporary
roads will addressed at the site-specific level.
(Doc. 56-3 at 28-29.)
Although
arguably captured within the meaning of"temporary," the original EA did not
-20-
explain the timeline on which temporary roads would be obliterated.
Ecosystems Council, 946 F. Supp. 2d at 1088.
See Native
The SEA explains that temporary
roads will be obliterated immediately after use and that most temporary roads will
remain active for only a single year.
(Doc. 56-1 at 21.)
The original EA failed
(Id. at 91.)
to explain that temporary roads will not be open simultaneously.
Nor did the original EA make clear the significance of the fact that most, if not all,
temporary roads will be closed during fall hunting season when elk are most
vulnerable.
(Id. at 94.)
This new information addresses a number of the wildlife displacement
factors as they apply to all temporary roads within the Project.
Factors three and
four are addressed because the SEA explains that most, if not all, temporary roads
will be closed during fall hunting season and that most roads will be in use for only
a short duration.
Additionally, Table 9 adequately addresses the first factor
because it indicates the length of each road segment within the lodgepole harvest
units are relatively short, ranging from .06 to 1.08 miles.
(See Doc. 63-1 at 4.)
Additionally, the SEA explains that the fifth wildlife displacement factor is
far less relevant to elk because numerous studies have found that OMRTD has the
greatest consideration on habitat effectiveness and that vegetation variables have
virtually no significance on elk mortality.
(Doc. 63-1 at 14-15.)
This leaves
only the second wildlife displacement factor left to discuss, proximity of the road
-21-
to secure habitat.
The SEA explores the proximity of temporary roads to elk secure habitat in
three places.
Figure 16 demonstrates that summer wildlife secure areas make up
30% of the Project area.
(Doc. 63-1 at 8, 10.)
Figure 17 demonstrates that fall
elk secure areas make up 61 % of the Project area.
(Id. at 11-12.)
The
difference between these figures reflects the fact that many of these roads are
subject to use restrictions during fall hunting season.
These figures, together with
the Fleecer Mountains Project Alternative 3 East map, provide a good indication of
where temporary roads occur in relation to secure areas.
(See Doc. 56-1 at 3 72.)
Additionally, the SEA explains that there are only two commercial units planned
for summer harvest that intersect a summer secure area.
(Doc.63-1 at 22.)
Of
these two units, only Unit 37 is relevant here because it is the only commercial unit
falling in summer secure area that is accessed by a temporary road.
(Id.)
Of the
1.08 miles of temporary road constructed to access Unit 37, the SEA explains that
only .11 miles actually fall within a secure area.
700 acres of secure habitat.
(Id.)
(Id.)
This will displace only
Additionally, "[t]here is a large ridge
separating Unit 37 from the rest of the secure block, giving the elk geographic
barrier as well as distance."
(Id.)
This adequately addresses factors two and
five.
Taken in its full context, the SEA sufficiently demonstrates that the impact
-22-
of temporary roads on elk during the Project's lifetime will be extremely limited.
Of the five wildlife displacement factors, only the second factor, proximity to a
secure area, is even at issue.
Because this road segment is small and displaces a
relatively small amount of secure area and because there are other particular
geographic features mitigating its impact, the SEA fairly concludes that elk are not
likely to feel the impact of this disruption.
Though it is a close call, the Court
concludes that the information contained in the SEA as a whole provides a full and
fair discussion of the impact that temporary roads will have on elk during the
Project's lifetime.
No further action is required on the impact of temporary roads
on elk.
In sum, the Court concludes that Federal Defendants have fully complied
with three of the Court's instructions on remand.
Because Federal Defendants
have not discharged their section 7 consultation requirements, the Court will not
dissolve the injunction at this time.
Accordingly, IT IS ORDERED that Federal Defendant's Motion to Dissolve
Injunction (Doc. 55) is DENIED.
DATED this f 6~ay of October, 201
Dana L. Christensen, Chief Judge
United States District Court
-23-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?