Alliance for the Wild Rockies et al v. Weber et al
Filing
47
ORDER granting 26 Motion for Summary Judgment; denying 18 Motion for Summary Judgment. Signed by Chief Judge Dana L. Christensen on 10/30/2013. (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ALLIANCE FOR THE WILD
ROCKIES, a non-profit organization,
et al.,
CV 12–90–M–DLC
ORDER
Plaintiffs,
vs.
CHIP WEBER, in his official capacity
as Forest Supervisor for the Flathead
National Forest, et al.,
Defendants.
INTRODUCTION
Plaintiffs filed suit on May 29, 2012, seeking judicial review of the U.S.
Forest Service’s Record of Decision pursuant to the Administrative Procedures
Act, 5 U.S.C. § 706 permitting implementation of the Flathead National Forest
Precommercial Thinning Project (“Project”). Plaintiffs claim Defendants violate
NEPA by approving the Project as a categorical exclusion despite extraordinary
circumstances requiring an Environmental Assessment (“EA”) or Environmental
Impact Statement (“EIS”). Specifically, Plaintiffs allege the Forest Service fails to
1
analyze the Project’s impacts to bull trout critical habitat and bull trout; fails to
analyze the Wild and Scenic North Fork of the Flathead River under an
extraordinary circumstances analysis; and fails to sufficiently analyze impacts on
lynx and their critical habitat. Plaintiffs also claim the Forest Service violates the
National Environmental Policy Act (“NEPA”) by failing to take a hard look at the
direct, indirect, and cumulative effects of the Project. Plaintiffs challenge the
Project under § 7 of the Environmental Species Act (“ESA”) as follows: the Forest
Service’s determination that the Project has no effect on bull trout is unsupported
by the record; Defendants fail to specify where thinning will occur in relation to
bull trout critical habitat; and Defendants’ finding that the Project may affect but is
not likely to adversely affect lynx and lynx critical habitat violates the ESA.
Finally, Plaintiffs argue the Forest Service violates the National Forest
Management Act (“NFMA”) by failing to comply with the Inland Native Fish
Strategy (“INFISH”).
Defendants respond that the Project complies with NEPA because the Forest
Service: sufficiently identified where Project activities would occur; provided
appropriate Wild and Scenic River analysis; reasonably determined the Project is
not likely to adversely impact lynx or lynx critical habitat; and is not required to
consider cumulative impacts because categorical exclusions by definition do not
2
have cumulative effects on the environment. Regarding the ESA, Defendants
argue the biological assessment correctly concludes the Project will not effect bull
trout or its habitat and the analysis of bank stability, temperature increases, and
peak flows was sufficient. For lynx, Defendants contend the Forest Service did
not mischaracterize matrix habitat, the Lynx Direction does not apply, and the
Forest Service was not required to reinitiate consultation on the Forest Plan.
Defendants lastly argue the Project complies with INFISH and thus the Project
does not violate NFMA.
This Project is the most innocuous logging project to be challenged in this
Court to date. The Project was dramatically reduced in scope following public
comment, primarily by the Plaintiffs, from 12,563 acres to approximately 3,650
acres. Only 500 acres will be thinned per year. No roads will be reopened or
created for Project use. Only hand trimming will be performed, with hand tools
used near bull trout critical habitat. The trees that will be thinned fall far short of
commercial size–most are one to five inches in diameter and only a few feet tall.
In short, this Project, compared to the majority of projects that come before the
Court, is truly designed to promote and restore forest health, and will benefit the
endangered species inhabiting the Flathead National Forest. Plaintiffs’ complaints
are solely based on relatively insignificant alleged procedural missteps by the
3
Forest Service, and they point to no actual or even reasonably potential harm the
Project will cause to any of the relevant species. For these reasons, as well as the
legal analysis to follow, Plaintiffs’ motion for summary judgment will be denied
and Defendants’ motion will be granted.
BACKGROUND
The Forest Service declares the purpose of the Project is to “promote stand
health and vigor, restore western white pine stands by promoting genetically
improved planted white pine, and to reduce future wildland fire risk and hazard by
reducing hazardous fuels within the wild urban interface.” (Doc. 20 at 2-3.)
Defendants state that thinning results in an increase in the amount of moisture,
sunlight, and nutrients received by the remaining trees in stands, and thus
promotes disturbance-resistant species of trees. “Stands proposed to be thinned
fall into two stand types: (1) post-fire second-growth stands in the wildland-urban
interface that are dominated by three to- four-foot tall lodgepole pine trees at a
density of approximately 10,000 to 100,000 stems per acre; and (2) 10 to 30-year
old second growth stands dominated by mixed conifer trees growing at a density
of approximately 1,000 to 5,000 stems per acre.” FS 0772. The Project will retain
hardwood trees when feasible and no treatments are planned in stands with mature
or old trees. Id. The stands proposed for thinning do not contain trees of
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commercial size and the Project will not produce merchantable wood products. FS
0010. The thinning units vary between one and 181 acres in size and most units
are less than 50 acres. FS 0011-13. Thinning is planned to occur at a rate of
around 500 acres per year, and the Project began in July 2013 with thinning of
slightly over 400 acres.
In November 2010, the Forest Service completed a biological assessment on
bull trout which concluded the Project would have no effect on bull trout. FS
0226. In December 2010, the Forest Service completed a biological assessment
for Terrestrial Wildlife Species concluding that the Project “may affect but is not
likely to affect” grizzly bears, Canada lynx, or Canada lynx critical habitat. The
Forest Service informally consulted with the Fish and Wildlife Service for the
grizzly bear, bull trout, lynx, lynx critical habitat, and the then-listed gray wolf.
The Fish and Wildlife Service agreed with the Forest Service’s determinations and
conclusions in the biological assessment that Project-related impacts to gray
wolves, grizzly bears, Canada lynx, and designated critical habitat for Canada lynx
would be insignificant. After receiving public comment, the scope of the Project
was reduced from 12,563 acres to approximately 3,650 acres.
The Decision Memorandum determined the project was categorically
excluded from analysis in an EA or an EIS pursuant to 36 CFR 220.6(e)(6) –
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“Timber stand and/or wildlife habitat improvement activities that do not include
the use of herbicides or do not require more than 1 mile of low standard road
construction.” Plaintiffs timely appealed the Decision Memo, and Deputy
Regional Forrester Thomas Schmidt denied the appeals on January 4, 2012.
Plaintiffs filed a motion for preliminary injunction on June 22, 2013, which was
denied July 31, 2013.
ANALYSIS
I.
NEPA
NEPA requires federal agencies to prepare a detailed environmental impact
statement for actions that may significantly affect the environment. 42 U.S.C. §
4332(2)(C). Unlike NFMA, NEPA does not compel agencies to achieve particular
environmental results. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371
(1989). Agencies instead must abide by NEPA's procedural requirements to
“carefully consider” a project's environment impacts and make the relevant
information available to the public. Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 349 (1989). An EIS must provide a “full and fair discussion of
significant environmental impacts,” and inform “decisionmakers and the public of
the reasonable alternatives which would avoid or minimize adverse impacts or
enhance the quality of the human environment.” 40 C.F.R. § 1502.1.
6
Under NEPA, the Court must “simply [ ] ensure that the Forest Service
made no ‘clear error of judgment’ that would render its action ‘arbitrary and
capricious.’” Lands Council v. McNair, 537 F.3d 981, 991 (9th Cir. 2008)
(“Lands Council I”), overruled in part on other grounds by Winter v. Nat.
Resource Def. Council, Inc., 555 U.S. 7 (2008). 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.” Id. at 987 (citations and internal quotation marks omitted).
A.
Categorical exclusion
A federal agency may adopt a “categorical exclusion” for a “category of
actions which do not individually or cumulatively have a significant effect on the
human environment.” 40 C.F.R. § 1508.4. An action falling within an adopted
categorical exclusion generally does not mandate preparation of an EIS or an EA.
Id. However, an agency adopting a categorical exclusion must “provide for
extraordinary circumstances in which a normally excluded action may have a
significant environmental effect.” Id. If such extraordinary circumstances exist,
an EIS or an EA must be prepared.
7
Resource conditions that agencies should consider in determining whether
extraordinary circumstances warrant further analysis and documentation in an EA
or an EIS include, as relevant here: federally listed threatened or endangered
species or designated critical habitat, species proposed for federal listing or
proposed critical habitat, or Forest Service sensitive species; and Congressionally
designated areas, such as wilderness, wilderness study areas, or national recreation
areas. 36 C.F.R. § 220.6(b)(1). The mere presence of one of these conditions does
not prohibit use of a categorical exclusion. § 220.6(b)(2). Rather, if a cause-effect
relationship exists between the proposed action and the potential effect on the
condition, the agency must analyze the degree of the potential effect to determine
whether extraordinary circumstances exist. Id.
Defendants determined the Project was categorically excluded from analysis
in an EA or EIS pursuant to 36 C.F.R. 220.6(e)(6) which excludes “[t]imber stand
and/or wildlife habitat improvement activities that do not include the use of
herbicides or do not require more than 1 mile of low standard road construction.”
An example of this type of categorical exclusion is “thinning or brush control to
improve growth or to reduce fire hazard including the opening of an existing road
to a dense timber stand.” 36 C.F.R. 220.6(e)(6)(ii). The subject Project falls
within this example.
8
Plaintiffs argue extraordinary circumstances are present in this case
precluding the use of a categorical exclusion and requiring an EA or EIS. They
contend that the Forest Service’s failure to analyze whether the Project will impact
bull trout critical habitat is arbitrary and capricious. Defendants argue they
reasonably determined no extraordinary circumstances exist, and focus their
arguments regarding categorical exclusion to the issue of whether their cumulative
impacts analysis was appropriate.
“An agency's determination that a particular action falls within one of its
categorical exclusions is reviewed under the arbitrary and capricious standard.”
Alaska Ctr. for Environment v. United States Forest Service, 189 F.3d 851, 857
(9th Cir. 1999). Prior to establishing a categorical exclusion, the agency is required
to perform a scoping process to identify the significant issues related to the
proposed action and judge the scope of the issues. Sierra Club v. Bosworth, 510
F.3d 1016, 1026 (9th Cir. 2007). During this process, the Forest Service must
consider the cumulative impacts of connected, cumulative, and similar actions, and
must prepare an EA if the project may have significant effects on the environment.
Id. at 1027.
Here the Forest Service decided the Project properly fell within the
categorical exclusion for “timber stand and/or wildlife habitat improvement
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activities that do not include the use of herbicides or do not require more than 1
mile of low standard road construction” pursuant to 36 C.F.R. § 220.6(e)(6). One
of the examples of this type of exclusion is “thinning to improve growth or to
reduce fire hazard including the opening of an existing road to a dense timber
stand.” 36 C.F.R. 220.6(e)(6)(ii). Plaintiffs do not challenge Defendants’ decision
on this point–because, again, the Project is a mirror image of the example listed at
§ 220.6(e)(6)(ii). Rather, Plaintiffs contend Defendants’ analysis of extraordinary
circumstances is flawed because the Forest Service failed to sufficiently analyze
the cause and effect relationship between the Project and its effects on bull trout.
(Doc. 19 at 24.) Defendants’ analysis of bull trout and its critical habitat was not
arbitrary or capricious, and Defendants did not err by determining the Project falls
within a categorical exclusion for the reasons stated below.
1.
Bull trout critical habitat
a.
Inadequate maps
Plaintiffs argue that the agencies have not identified where project activities
will occur in relation to bull trout critical habitat. As a result, Plaintiffs contend,
the agencies’ analysis of how the Project will affect bull trout critical habitat is
flawed. The Forest Service has adequately identified where the precommercial
thinning will take place in relation to critical bull trout habitat and Plaintiffs’ claim
10
fails on this issue.
In its Bull Trout Biological Assessment, the Fish and Wildlife Service
describes the location of critical habitat for “3 different bull trout core
populations.” FS 219. It also describes the major tributaries of these rivers, lakes
that have bull trout populations, and areas that support bull trout spawning. Id.
Also part of the record are eight maps showing the boundaries of the proposed
precommercial thinning. (See Doc. 14-1.)1
In light of this record, the Forest Service argues that Plaintiffs have not
explained how a more detailed map would impact the analysis of effects on bull
trout or bull trout critical habitat. The Forest Service is correct on this point. The
maps are sufficiently detailed to allow Plaintiffs to identify where the
precommercial thinning will take place. They identify the project boundaries
down to the township and range level. (Doc. 14-1). The maps allow the Plaintiffs
to identify where those activities will take place in relation to bull trout critical
habitat.
Plaintiffs’ main concern with respect to the maps appears to be that the
1
The parties refer to this document as either “AR:R1-R9” or “FS:R1-R8,”
but the supplemental record does not reflect this numbering nor does any other
filing show that numbering. Nevertheless, the maps at Doc. 14-1 are the only
possible maps to which the parties could be referring.
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maps do not identify specifically where thinning will take place within the 50-foot
stream buffer. But, as the Forest Service explains, this identification is not
necessary because special steps (on-site analysis by a fisheries biologist) will be
taken within the buffer area to ensure that any thinning (which will be done by
hand) will not have any effects on bull trout or their critical habitat. FS 223–25.
The Forest Service has adequately identified where the precommercial thinning
will take place in relation to critical bull trout habitat.
b.
PCEs
Plaintiffs next argue that the agencies’ bull trout analysis is inadequate
because the Service did not consider the Project’s potential effects on critical
habitat in terms of the nine primary constituent elements (PCEs) for critical
habitat. (Doc. 28 at 19–23.) Plaintiffs did not raise this argument until their reply
brief. Generally, "legal issues raised for the first time in reply briefs are waived."
Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990). However, because
Defendants had the opportunity to reply to Plaintiffs’ argument, the Court will
consider it. Defendants respond that PCE analysis was not required, and the Bull
Trout Biological Assessment sufficiently analyzed the impact of the Project
because the stream characteristics examined overlap with the PCEs and the bull
trout critical habitat rule.
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The PCEs for critical habitat are the “physical or biological features” that
are “essential to the conservation of the species” and “which may require special
management considerations or protection.” 15 U.S.C. § 1532(5)(A)(i); 50 C.F.R §
424.12(b). Section 424.12(b) outlines the criteria for designating critical habitat.
There are nine PCEs for bull trout critical habitat:
(1) Springs, seeps, groundwater sources, and subsurface water
connectivity (hyporheic flows) to contribute to water quality and
quantity and provide thermal refugia.
(2) Migration habitats with minimal physical, biological, or water
quality impediments between spawning, rearing, overwintering, and
freshwater and marine foraging habitats, including but not limited to
permanent, partial, intermittent, or seasonal barriers.
(3) An abundant food base, including terrestrial organisms of riparian
origin, aquatic macroinvertebrates, and forage fish.
(4) Complex river, stream, lake, reservoir, and marine shoreline aquatic
environments, and processes that establish and maintain these aquatic
environments, with features such as large wood, side channels, pools,
undercut banks and unembedded substrates, to provide a variety of
depths, gradients, velocities, and structure.
(5) Water temperatures ranging from 2 to 15 °C (36 to 59 °F), with
adequate thermal refugia available for temperatures that exceed the
upper end of this range. Specific temperatures within this range will
depend on bull trout life-history stage and form; geography; elevation;
diurnal and seasonal variation; shading, such as that provided by
riparian habitat; streamflow; and local groundwater influence.
(6) In spawning and rearing areas, substrate of sufficient amount, size,
and composition to ensure success of egg and embryo overwinter
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survival, fry emergence, and young-of-the-year and juvenile survival. A
minimal amount of fine sediment, generally ranging in size from silt to
coarse sand, embedded in larger substrates, is characteristic of these
conditions. The size and amounts of fine sediment suitable to bull trout
will likely vary from system to system.
(7) A natural hydrograph, including peak, high, low, and base flows
within historic and seasonal ranges or, if flows are controlled, minimal
flow departure from a natural hydrograph.
(8) Sufficient water quality and quantity such that normal reproduction,
growth, and survival are not inhibited.
(9) Sufficiently low levels of occurrence of nonnnative predatory (e.g.,
lake trout, walleye, northern pike, smallmouth bass); interbreeding (e.g.,
brook trout); or competing (e.g., brown trout) species that, if present, are
adequately temporally and spatially isolated from bull trout.
(Bull Trout Rule, FS 396–97.)
Here, the Fish and Wildlife Service completed a biological assessment for
bull trout in advance of the Project that identified three potential effects that the
Project might have on bull trout: “bank stability, temperature alterations, and water
yield.” (Bull Trout Biological Assessment, FS 224–26.) Each of these three
effects is related to one or more of the nine PCEs. Further, the Project follows the
INFISH direction which examines pool frequency, large woody debris, meanmaximum water temperature, mean wetted width to depth ratio, and bank stability.
Ultimately, the Service concluded that thinning activities would not affect critical
habitat in any of the three ways, as long as the thinning occurred outside a 50 foot
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stream buffer.
The Court agrees with Defendants that analysis of the PCEs in this case was
not required. The Bull Trout Biological Assessment relied upon by Defendants in
this case is very thorough and covers all the substantive areas outlined in the PCEs
relevant here. The PCEs that are not covered in the Bull Trout Biological
Assessment analysis do not appear to apply to this Project. Thus, even if the Court
were to require Defendants to analyze the bull trout PCEs for the Project, in all
likelihood the analysis would probably look almost identical to the current
analysis, perhaps with slightly different language. Moreover, the effects that the
Fish and Wildlife Service identified here are very similar to the likely effects of
timber harvesting identified in the Bull Trout Rule: stream shading and cover,
channel stability, large woody debris recruitment, increase sedimentation, and
stream flows. (Bull Trout Rule, FS 399.)
In sum, the PCEs are one of many analytical tools Defendants may use in
determining whether, and to what extent, a Project may affect endangered species.
NEPA does not require Defendants to analyze the bull trout PCEs in this case, and
Defendants did not err in failing to do so. See 42 U.S.C. § 4331 et seq.
Defendants’ analysis was thorough and complete without specifically addressing
each PCE, and their conclusion that the Project will have no effect on bull trout or
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bull trout critical habitat was correct.
2.
Impacts on Wild and Scenic North Fork of the Flathead
River
Plaintiffs argue Defendants erred by failing to analyze the congressionally
designated Wild and Scenic North Fork of the Flathead River (“North Fork”) in its
analysis of extraordinary circumstances. Although the Forest Service did analyze
the Project impacts on the North Fork in its Wild and Scenic River Act analysis,
Plaintiffs contend Defendants still violated NEPA because they did not do the
analysis under the extraordinary circumstances section of the decision
memorandum. Defendants respond that Plaintiffs are “fly-specking” the decision
memorandum by complaining that their correct analysis was simply contained
within the wrong section. Defendants are correct.
Defendants’ river analysis provides the requisite findings necessary for an
extraordinary circumstances analysis and the decision memo confirms that the
Project does not violate the Wild and Scenic Rivers Act or NEPA. The river
analysis states that the thinning in both the scenic and recreation segments of the
North Fork “would open up the stand, likely making it more pleasing to the eye”
and will “allow the trees to grow more vigorously, thus allowing a forest condition
16
to mature more rapidly.” FS 7849-50. Many of the units within these segments
have been burned by wildfire and have previously been logged. Id. Many of the
proposed treatment areas will be unseen by river users. Overall, the analysis
concluded that “the changes in this area should be very minimal to river users.”
Id.
The Forest Service’s decision not to prepare an EIS must be upheld unless
the decision was unreasonable. Friends of the Southeast’s Future v. Morrison,
153 F.3d 1059, 1062 (9th Cir. 1998). In reviewing an EIS, the Court may not “flyspeck the document and hold it insufficient on the basis of inconsequential,
technical deficiencies.” Id. at 1063. Although this statement refers to review of
an EIS, the Court sees no reason why the same principle should not apply to
review of a decision memo where no EIS was prepared. The decision memo states
that no thinning will occur within any segments designated as wild, and that all
thinning meets the Forest Plan standards for the river segments. The river analysis
provides sufficient analysis regarding whether extraordinary circumstances are
present because the North Fork is a congressionally designated Wild and Scenic
River to satisfy 36 C.F.R. § 220.6(b). As the statute points out, the mere presence
of one of these conditions does not prohibit use of a categorical exclusion. §
220.6(b)(2). Rather, the agency is only required to analyze the degree of the
17
potential effect of the Project on the resource condition to determine whether
extraordinary circumstances exist. Id. The river analysis provides this scrutiny
and hence no NEPA violation occurred here.
3.
Lynx
Plaintiffs argue the Forest Service fails to sufficiently analyze the impacts to
lynx and lynx critical habitat in the Biological Assessment for Terrestrial Wildlife.
Thus, Plaintiffs contend Defendants’ analysis of extraordinary circumstances is
flawed and an EA or EIS must be prepared to remedy Defendants’ NEPA
violations. These claims are directly linked to Plaintiffs’ ESA claims regarding
lynx, and, for the reasons stated in that section, the Court does not find Plaintiffs’
arguments persuasive. Defendants reasonably concluded no extraordinary
circumstances exist regarding lynx for this Project.
B.
Cumulative effects
Plaintiffs next fault the Forest Service for failing to sufficiently analyze the
cumulative effects of the Project. Plaintiffs argue NEPA requires the Forest
Service to take a “hard look” at the direct, indirect, and cumulative effects of the
Project on lynx, bull trout, grizzly bears and each species’ critical habitat.
Defendants respond that analysis of cumulative impacts does not apply to
categorical exclusions. Even if the agencies were required to do a cumulative
18
impacts analysis, they contend they satisfied that requirement through the
cumulative effects worksheets prepared in conjunction with the Project, as well as
other key documents demonstrating their consideration of ongoing projects.
Defendants assert that if the Court finds extraordinary circumstances do not exist,
the analysis on this issue ends.
Defendants are correct on this issue because extraordinary circumstances
analysis includes consideration of whether a normally excluded action may have
cumulatively significant environmental effect. 40 C.F.R. § 1508.4. The term
significantly as used in NEPA mandates a multitude of considerations, including
the potential for uncertain effects, which is also a consideration under the
extraordinary circumstances analysis. 40 C.F.R. § 1508.27. Because a cumulative
effects analysis was performed as part of the categorical exclusion decision for this
Project, a separate cumulative impacts analysis is not required.
II.
ESA
Section 7 of the ESA requires an agency to ensure that no discretionary
action will “jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification of [critical]
habitat of such species.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.12(a). “Only
after the [agency] complies with § 7(a)(2) can any activity that may affect the
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protected [species] go forward.” P. Rivers Council v. Thomas, 30 F.3d 1050,
1055–57 (9th Cir. 1994).
The Forest Service’s first step in complying with § 7 is to obtain from the
Wildlife Service “a list of any listed or proposed species or designated or proposed
critical habitat that may be present in the action area.” 16 U.S.C. § 1536(c)(1); 50
C.F.R. § 402.12(c)–(d) (emphasis added). If the Wildlife Service 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)(1); 50 C.F.R. §§
402.12 (f), 402.14(a), (b)(1); Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th
Cir. 2006). Once the biological assessment is completed, it must be shared with
the Wildlife Service. 50 C.F.R. § 402.12(j). “If [the Wildlife Service] advises that
no listed species or critical habitat may be present, the Federal agency need not
prepare a biological assessment and further consultation is not required.” 50
C.F.R. § 402.12(d).
A determination by the Forest Service in a biological assessment that an
action “may affect” a listed species or critical habitat gives rise to a consultation
requirement under section 7 of the ESA. Karuk Tribe of Cal. v. United States
Forest Service, 681 F.3d 1006, 1027 (9th Cir. 2012). The Ninth Circuit holds that
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“the minimum threshold for an agency action to trigger consultation with the
Wildlife Service is low.” W. Watersheds Project, 632 F.3d at 496. “[A]ny
possible effect, whether beneficial, benign, adverse, or of an undetermined
character, triggers the formal consultation requirement.” Id. (citing 51 Fed. Reg.
19,949; Cal. ex rel. Lockyer v. U.S. Dept. of Agric., 575 F.3d 999, 1018–19 (9th
Cir. 2009)).
There are two forms of consultation: formal and informal. Karuk Tribe of
Cal., 681 F.3d at 1027. Formal consultation is necessary where the Forest Service
has determined that an action is “likely to adversely affect” a listed species. But it
is not required if 1) the Forest Service finds, either in its biological assessment or
through informal consultation, that while a project “may affect” a listed species,
the species is “not likely to be adversely affected” and 2) the Wildlife Service
concurs in writing. 50 C.F.R. §§ 402.12(j)–(k), 402.14(b)(1), 402.13(a).
The Administrative Procedure Act governs review of agencies’ actions
under Section 7. W. Watersheds Project, 632 F.3d at 496 (citation omitted). The
Court must determine whether the agencies’ actions were “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” Id. (citation
omitted). “Deference to an agency’s technical expertise and experience is
particularly warranted with respect to questions involving scientific matters.”
21
United States v. Alpine Land & Reservoir Co., 887 F.2d 207, 213 (9th Cir. 1989).
However, the “presumption of agency expertise may be rebutted if the decisions,
even though based on scientific expertise, are not reasoned.” Greenpeace v.
NMFS, 80 F. Supp. 2d 1137, 1147 (W.D. Wash. 2000).
The Fish and Wildlife Service promulgated the final bull trout critical
habitat rule which designated approximately 19,729 miles of streams, 488,251.7
acres of reservoirs and lakes, and 754 miles of marine shoreline as critical habitat
for bull trout throughout the Northwest. (Doc. 21 at 18.) The rule went into effect
November 17, 2010, and Defendants completed the Bull Trout Biological
Assessment on November 18, 2010. The decision memo states that “all
precommercial thinning activities will be no closer than 50 linear feet to all
waterways, including scoured channels. A 50 foot aquatic buffer will result in no
measurable peak flow increases and allow for a ‘No Effect’ to bull trout . . .
determination.” (Doc. 21 at 20.) Hand-thinning may be permitted to the channel
edge on a case-by-case basis if permitted by a fisheries biologist. The Forest
Service determined the Project would have “no effect” on bull trout.
A.
Bull trout and Bull Trout Critical Habitat
Plaintiffs argue Defendants violate § 7 of the ESA by failing to make a
specific finding on whether the Project may result in the destruction or adverse
22
modification of bull trout critical habitat. Plaintiffs point out that neither the bull
trout biological assessment nor the decision memo discuss bull trout critical
habitat–rather Defendants discuss bull trout habitat generally in their analysis of
peak flow, bank stability, and stream temperature. The bull trout critical habitat
rule lists the nine bull trout PCEs, and Plaintiffs argue, similar to their NEPA
argument, that Defendants violate the ESA by failing to describe the Project
impacts to the PCEs.
Defendants respond that the Forest Service’s “no effect” determination was
rational and that the Forest Service was not required to consider the PCEs for bull
trout critical habitat because that analysis only applies to critical habitat
designation–not § 7 consultation. Defendants argue that while they may elect to
consider PCEs during consultation, the ESA does not require it and it would serve
no purpose here where there is no effect on the species from the proposed action.
Further, Defendants aver, the bull trout critical habitat rule emphasizes
consideration of PCEs only in conjunction with the adverse modification inquiry
used for preparation of biological opinions.
Defendants are correct that no regulation or statute requires the agencies to
consider the PCEs during § 7 consultation; rather, the agencies may consider them
and often do when determining the extent of a proposed action’s effects.
23
However, Defendants assert that the FWS does not address PCEs in making a “no
effect” determination. The regulation governing biological assessments—50
C.F.R. § 402.12—does not prescribe analysis of PCEs in this context. The FWS
does require consideration of PCEs during the “adverse modification” portion of
formal consultation by memorandum. However, Plaintiffs point to no authority
that indicates that the Service must consider PCEs when it analyzes effects on
critical habitat in a biological assessment. Where there is a “no effect”
determination, as in this case, the agencies have concluded that the Project is
unrelated to a species’ habitat PCEs. Requiring a PCE analysis in the context of a
no effects analysis, when no statute or regulation mandates it, is contrary to the
purpose and intent of “no effect” determinations, and the Court will not require it
here. Defendants’ decision is not “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law” and the Court will defer, as it must, to the
agencies’ technical expertise regarding the proper considerations for § 7
consultation.
C.
Canada lynx
1.
“Matrix” habitat characterization
Plaintiffs contend the Forest Service’s conclusion that the Project “may
affect but is not likely to affect” lynx and lynx critical habitat is arbitrary and not
24
supported by the record. Plaintiffs challenge Defendants’ characterization of
habitat as matrix habitat. Defendants respond that their designation of matrix
habitat is correct and many of Plaintiffs’ arguments are based on records prepared
before the Forest Service eliminated significant portions of the stands from the
Project to avoid impacting potential lynx habitat. Defendants’ designation of
matrix habitat is not arbitrary and Plaintiffs’ arguments fail on this issue.
Plaintiffs initially argued that Project units that lacked adequate snow
conditions could still qualify as lynx critical habitat because lynx could possibly
forage and den in those areas in the summer. This argument is not supported by
the critical habitat designation which requires winter snow conditions that are
generally deep and fluffy for extended periods of time. FS 7930. Squires et al.
(2010) also does not support Plaintiffs’ argument because it states that lynx use the
same mid-to-high elevation forest areas in the summer as winter, except summer
habitat is at slightly higher elevations. (Doc. 19-7 at 7-8.) Thus, Plaintiffs’
contention that low elevation Project units that lack deep fluffy snow in winter
could support lynx habitat in the summer fails.
Plaintiffs’ contention that the Forest Service arbitrarily determined that all
Project units below 4,000 feet were not lynx habitat is contradicted by the record.
As part of the Flathead’s mapping of lynx habitat, the Forest Service considered
25
forest features, elevations, habitat types, and information from weather reporting
stations and National Resource Conservation Service snow course data because
snow was a defining variable. The Forest Service states that the habitat elevation
level was based on this data, and was not set at 4,000 feet across the forest. “In
some areas adequate snow depths were predicted to occur down to 3,400 feet in
elevation, where in other locations the correct snow conditions only occur down to
4,100 feet in elevation.” FS 8010. To be considered lynx habitat, the Forest
Service looked at two criteria–boreal forest and snow depth. Id. Areas meeting
only one criteria within lynx critical habitat were considered matrix habitat. The
critical habitat designation states that
[i]n matrix habitat, activities that change vegetation structure or condition
would not be considered an adverse effect to lynx critical habitat unless
those activities would create a barrier or impede lynx movement between
patches of foraging habitat and between foraging and denning habitat within
a potential home range, or if they would adversely affect adjacent foraging
habitat or denning habitat. For example, a pre-commercial thinning or fuels
reduction project in matrix habitat would not adversely affect lynx critical
habitat, and would not require consultation.
Id. (emphasis added).
The critical habitat designation provides as an example for a project
occurring in matrix habitat that would not adversely affect lynx critical habitat
exactly that challenged here: a pre-commercial thinning project. This strongly
26
supports Defendants’ decision that the Project is not likely to adversely affect lynx
or lynx critical habitat and the decisions regarding matrix habitat. Further, the
data sheets upon which Plaintiffs rely to support their elevation arguments do not
accurately identify Defendants’ conclusions because the Forest Service eliminated
large portions of the stands after the sheets were prepared. FS 1002. The Project
units do not fall within the Flathead’s lynx habitat mapping areas. Although the
Flathead’s mapping of critical habitat does not entirely overlap with the Fish and
Wildlife Service’s designation of critical habitat, Fish and Wildlife Service’s
designation was mapped on a much larger scale and thus did not account for
detailed variations within the larger boreal forest as did the Forest Service’s
mapping. For all of these reasons, Plaintiffs’ arguments are not persuasive
regarding the matrix habitat designation.
2.
Standards VEG S1, S2, S5, and S6 do not apply
Plaintiffs next challenge Defendants’ failure to determine whether the
standards VEGS1, S2, and S5 of the Northern Rockies Lynx Management
Direction (“Lynx Direction”) apply. Defendants respond that the Lynx Direction
standards do not apply because the Project is not located within lynx habitat. The
Lynx Direction “applies to mapped lynx habitat on National Forest System land
presently occupied by Canada lynx, as defined by the Amended Lynx
27
Conservation Agreement between the Forest Service and the FWS.” FS 7664.
Because Plaintiffs have not demonstrated that Defendants’ conclusion that no
Project units are located in lynx denning or foraging habitat is erroneous, this
argument fails.
3.
Reliance on the Lynx Direction
Plaintiffs argue Defendants erred by relying on the Lynx Direction to decide
the Project will not adversely affect or modify lynx critical habitat because the
Lynx Direction never addressed whether implementation of its terms would
adversely modify lynx critical habitat on National Forests. Defendants respond
that the Lynx Direction standards do not apply here because the Project is not
located in lynx habitat, but rather in matrix habitat. Defendants also argue that
they conducted an independent, project-specific ESA Section 7 consultation as
demonstrated by the biological assessment’s analysis based on the lynx critical
habitat designation.
Defendants are correct. Because the Project is not located in lynx denning
or foraging habitat, and because thinning activities in matrix habitat would not
create a barrier or impede lynx movement between patches of foraging or denning
habitat within a potential home range (FS 0995), the standards from the Lynx
Direction do not need to be analyzed to comply with the ESA.
28
D.
Reinitiation of formal consultation after designation of lynx
critical habitat
Plaintiffs next contend Defendants must reinitiate formal consultation on the
Flathead National Forest Plan to determine whether the Lynx Direction will
adversely affect the lynx critical habitat now designated on the Flathead. The Fish
and Wildlife Service issued the revised critical habitat designation for lynx in
2009 after the Forest Service adopted the Lynx Direction for the Flathead Forest
Plan in 2007. Defendants argue reinitiation of formal consultation is not necessary
because the Forest Service’s adoption of the Lynx Direction did not authorize,
fund, or carry out any activity with effects on lynx; hence, there was no affirmative
agency action. Defendants contend Pacific Rivers, cited by Plaintiffs, does not
control because subsequent case law establishes that a land use plan does not
constitute ongoing agency action. Defendants further argue that regardless of the
duty to reinitiate consultation, potential effects to lynx and their critical habitat
will be analyzed under § 7, as Defendants did here using the lynx critical habitat
designation.
This Court established a burden-shifting approach for injunctions sought
pursuant to alleged ESA violations in Alliance for the Wild Rockies v. Krueger,
2013 WL 3187275 (June 25, 2013)(“Bozeman”). As a first step in the burden
29
shifting approach, a plaintiff must substantiate its claim by alleging a specific
irreparable harm resulting from the ESA violation. Salix v. United States Forest
Service, 2013 WL 2099811 at *17. In Burlington Northern, 23 F.3d at 1511, the
Ninth Circuit implied that “harm” in the ESA context is a violation of the
ESA—that is, causing “jeopard[y] [to] the continued existence of any endangered
species or threatened species or result in the destruction or adverse modification of
[critical habitat] . . . .” 16 U.S.C. § 1536(a)(2). So, at the outset, the plaintiff must
allege that, as a result of the ESA violation, a project will jeopardize the continued
existence of a specific endangered species or will destroy or adversely modify its
critical habitat.
If the plaintiff alleges a specific harm, then the court presumes the harm is
irreparable for purposes of issuing an injunction. Thomas v. Peterson, 753 F.2d
754, 764 (9th Cir. 1985) (citation and internal quotation marks omitted). At this
stage, “‘[i]t is not the responsibility of the plaintiff to prove, nor the function of the
courts to judge, the effect of a proposed action on an endangered species when
proper procedures have not been followed.’” Wash. Toxics, 413 F.3d at 1035
(quoting Thomas, 753 F.2d at 765).
If the plaintiff has alleged a specific harm, then, at the second step, the
burden shifts to the agency which must show that the action will not jeopardize the
30
species or destroy or adversely modify its critical habitat. Id. In terms of critical
habitat, the agency must show that the affected critical habitat will remain
“functional.” That is, the physical and biological features of critical
habitat—which are commonly described in terms of primary constituent elements,
see 50 C.F.R. § 424.12(b)—will not be altered to an extent that appreciably
reduces the conservation value of the critical habitat, and neither the recovery nor
the survival of the species will be jeopardized. Gifford Pinchot, 378 F.3d at
1069–71 (discussing 50 C.F.R. § 402.02); Natl. Marine Fisheries Serv., 524 F.3d
at 931–33; 74 Fed. Reg. 8616-01, 8644 (Feb. 25, 2009).
The agencies cannot meet this burden by relying solely on their compliance
with standards or guidelines that are the product of the underlying ESA violation.
To permit such reliance would violate NEPA because the agencies would be
“‘fail[ing] to consider an important aspect of the problem.’” Lands Council v.
McNair, 537 F.3d 981, 993 (9th Cir. 2008) (quoting Motor Vehicle Mfrs. Assn.,
Inc. v. St. Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983)).
If the agency comes forward with evidence that the project will not
jeopardize a species or destroy or adversely modify its critical habitat, then,
consistent with Burlington Northern and National Marine Fisheries Service, the
plaintiff must come forward with its own evidence of irreparable harm. If the
31
plaintiff makes this showing, then an injunction is issued. This approach does not
require the Court to balance the equitable interests of the parties (which is
prohibited in the ESA context), but it does require the Court to balance the
evidence of harm presented by the plaintiff and the agency. If this balancing is a
close question, then the Court errs on the side of protection and issues an
injunction. Natl. Wildlife Fedn., 23 F.3d at 1510–11.
In Southwest Center for Biological Diversity v. U.S. Forest Service, the
Ninth Circuit held that when there is a procedural violation of the ESA, there is a
presumption of irreparable harm that generally requires an injunction. 307 F.3d
964, 972–73 (9th Cir. 2002), opinion withdrawn, 355 F.3d 1203 (2004). But there
is a “narrow exception”: a project need not be enjoined if it will not harm the
species or its critical habitat. Id. at 973. Although Southwest Center for
Biological Diversity is not binding precedent, as the Court explained in Bozeman,
it does serve as guidance in this case, and together with the case law discussed
above, supports the burden shifting approach for determining whether a project
specific injunction should be issued to remedy a procedural ESA violation. In
summary, the burden shifting approach consists of three steps:
1.
A plaintiff must initially allege a specific irreparable harm
resulting from the ESA violation so that the Court can tailor an
injunction to remedy the specific harm. If the plaintiff does so,
32
then the Court presumes that the challenged action will cause
irreparable harm.
2.
The agency can rebut this presumption by showing that the
challenged action will not jeopardize the species or destroy or
adversely modify its critical habitat.
3.
If the agency comes forward with evidence that the challenged
action will not jeopardize the species or destroy or adversely
modify its critical habitat, then an injunction should be issued
only if the plaintiff produces evidence that such harm is at least
likely. If the evidence from both sides presents a close
question, then the court should err on the side of issuing an
injunction.
Plaintiff sought a preliminary injunction to halt the Project in July 2013, and
the parties were able to address the burden-shifting analysis in those briefs but not
in the summary judgment briefs because the Court’s Bozeman opinion was not
issued until after the summary judgment briefing concluded. The Court will
therefore incorporate the portion of the preliminary injunction briefs discussing
lynx critical habitat and the burden-shifting analysis in order to have the parties’
full analysis before it.2 The Court will also consider Plaintiffs’ notice of
supplemental authority (Doc. 33) and Defendants’ response (Doc. 37), although
those briefs also were filed prior to Bozeman and thus do not address the
2
District courts may consider uncited record materials and conduct an
independent search of the record in deciding summary judgment motions. See
Lynn ex rel Lynn v. Yamaha Golf-Car Co., 894 F.Supp.2d 606, 623 (W.D. Pa.
2012) citing Fed. R. Civ. P. 56(c)(3).
33
applicable burden-shifting analysis.
Plaintiffs do not make any specific allegations of irreparable harm that will
occur to lynx or lynx critical habitat absent injunction and reinitiation of
consultation in their summary judgment briefs. Rather, Plaintiffs focus almost
entirely on Defendants’ alleged procedural violations without discussing what
effects these violations will have on lynx. In their motion for preliminary
injunction, Plaintiffs allege Defendants’ thinning will reduce lynx habitat quality
for up to several decades and may cause habitat fragmentation. Defendants
respond that Plaintiffs’ vague and conclusory allegations do not meet their
requirement at step one to allege a specific irreparable harm resulting from the
ESA violation.
First, Plaintiffs must allege that, as a result of the ESA violation, the Project
activities will jeopardize the continued existence of a specific endangered or
threatened species or will destroy or adversely modify its critical habitat.
Plaintiffs’ allegations in their preliminary injunction argument that the Project
activities will reduce lynx habitat quality and cause habitat fragmentation are
enough to satisfy their burden at the first step of the analysis. Though somewhat
conclusory, the allegations suffice for the Court to presume that irreparable harm
will occur.
34
Next, Defendants can rebut this presumption by showing that the challenged
action will not jeopardize the species or destroy or adversely modify its critical
habitat. Adverse modification does not occur in a thinning project that is not
commercial in nature; where no trees are being removed from the site or sold; no
heavy equipment is required to fell the trees, which are being cut down by hand;
and no roads are being constructed or reconditioned. See Native Ecosystems
Council & Alliance for the Wild Rockies v. United States Forest Serv., 2011 WL
4015662, at *10 (D. Idaho 2011). In terms of critical habitat, the agency must
show that the affected critical habitat will remain functional and the PCEs will not
be altered to an extent that appreciably reduces the conservation value of the
critical habitat, and neither the recovery nor the survival of the species will be
jeopardized. Bozeman, 2013 WL 3187275 at *4; see also 50 C.F.R. § 402.02
(definition of destruction or adverse modification).
The final rule for lynx critical habitat states that the primary constituent
element for lynx critical habitat is:
1. Boreal forest landscapes supporting a mosaic of differing successional forest
stages and containing:
a. Presence of snowshoe hares and their preferred habitat conditions, which
include dense understories of young trees, shrubs or overhanging boughs
that protrude above the snow, and mature multistoried stands with conifer
35
boughs touching the snow surface;
b. Winter snow conditions that are generally deep and fluffy for extended
periods of time;
c. Sites for denning that have abundant coarse woody debris, such as
downed trees and root wads; and
d. Matrix habitat (e.g., hardwood forest, dry forest, non-forest, or other
habitat types that do not support snowshoe hares) that occurs between
patches of boreal forest in close juxtaposition (at the scale of a lynx home
range) such that lynx are likely to travel through such habitat while
accessing patches of boreal forest within a home range.
74 Fed.Reg. at 8638.
Defendants meet their burden at step two through their analysis of the
critical habitat designation factors that show the matrix habitat that will be
affected by the Project will remain functional. The record also demonstrates that
Project activities will not create a barrier or impede lynx movement between
foraging and denning habitat within a potential home range. FS 0777. Unlike in
Bozeman, where the project was likely to adversely affect lynx critical habitat,
here the agencies found through careful analysis that the Project is not likely to
adversely affect lynx critical habitat. Bozeman, 2013 WL at *7. The Forest
Service admitted in Bozeman that the project would render hundreds of acres of
lynx habitat unsuitable, including negatively impacting denning, foraging, and
snowshoe hare habitat. Here, no Project activities will take place in denning or
36
foraging habitat. Regarding matrix habitat, the critical habitat designation lists a
precommercial thinning project as a type of action that would not adversely affect
lynx critical habitat and would not require formal consultation. FS 0777; FS 0198.
The Fish and Wildlife Service concurred with the Forest Service’s finding that the
Project is not likely to adversely affect lynx critical habitat and that formal
consultation was not required. FS 0198. These facts show the Project will not
adversely modify lynx critical habitat.
Further, Defendants used the lynx critical habitat designation as the basis of
their analysis rather than the Lynx Direction, so independent justification exists
apart from the Lynx Direction in this case unlike in Bozeman. FS 0781. Similar
to Native Ecosystems Council, 2011 WL 4015662, this Project is not commercial
in nature, no heavy equipment is required to fell the trees, which are being cut
down by hand, and no roads are being constructed or reconditioned. The Forest
Service independently complied with Section 7 of the ESA to ascertain that the
Project will not adversely modify or destroy lynx critical habitat. Having made
this determination, the Court now turns back to Plaintiffs at step three to determine
whether they have demonstrated that irreparable harm is likely.
Plaintiffs do not meet this burden. The thinning involved in the Project is
not likely to adversely affect lynx critical habitat in matrix habitat, which is the
37
only aspect of the PCE challenged by Plaintiffs. The Project units were selected to
occur outside of lynx foraging and denning habitat. The biological assessment
states that “proposed thinning is NOT in lynx habitat, so standards VEGS1, S2,
S5, and S6 are not affected by the project and exceptions or exemptions to the lynx
standards are not needed.” FS 0781. Because Plaintiffs’ claims regarding matrix
habitat designation fail, they have not demonstrated that Defendants erred by
determining that lynx critical habitat will not be adversely affected. Plaintiffs do
not show that irreparable harm is likely, and thus their ESA challenge regarding
lynx critical habitat does not prevail.
E.
Grizzly bears
The Forest Service’s determination that the Project may affect but is not
likely to affect grizzly bears violates the ESA, according to Plaintiffs, because the
agency contradicts itself regarding opening of bermed or decommissioned roads
and does not specifically determine which roads need more dense cover. Plaintiffs
are wrong on both counts.
The Wildlife Biological Assessment states both that “bermed or
decommissioned roads would not be opened for thinning” and “bermed,
decommissioned, or historic roads will not be opened for thinning without
additional, site-specific consultation on the effects to grizzly bears.” FS 0773,
38
0785. These statements are not inconsistent. As Defendants explain in the
Biological Assessment, no bermed, decommissioned, or historic roads will be
opened for the Project. If the Forest Service seeks modification of this policy,
additional consultation will be required to ensure protection of the grizzly bear and
its habitat. Defendants’ position regarding opening roads is not inconsistent and
Plaintiffs’ arguments fail in this respect.
Plaintiffs’ challenge regarding Flathead Forest Plan Amendment 19 likewise
fails. Amendment 19 requires that no point within a thinning unit be more than
600 feet from cover for certain areas. The Biological Assessment complies with
this mandate as follows: “design criteria include measurers to leave patches of
trees unthinned where needed to provide denser cover in the short term.
Unthinned areas may be left within thinning units or along open roads to maintain
a distance to cover of 600' or less.” FS 0785. Plaintiffs desire specifics regarding
exactly when and where the thinning will occur, but Defendants are correct that
they are not required to demarcate every area on every road where trees will
remain. This process can be performed during the thinning process, and
Defendants’ procedure outlined in the Biological Assessment does not violate the
ESA.
III.
Inland Native Fish Strategy
39
Plaintiffs argue Defendants violate NFMA by failing to comply with
INFISH. Under NFMA, the Forest Service must develop a Land Resource
Management Plan (a forest plan) for each national forest, 16 U.S.C. § 1604(f)(1),
which “provide[s] for diversity of plant and animal communities . . . in order to
meet overall multiple-use objectives,” 16 U.S.C. § 1604(g)(3)(B). Subsequently,
all projects planned within a forest must be consistent with the forest plan as well
as any regulations in effect at the time of the decision. Native Ecosystems Council
v. U.S. Forest Serv., 428 F.3d 1233, 1249 (9th Cir. 2005) (citing 16 U.S.C.
1604(l)); Native Ecosystems Council v. Tidwell, 599 F.3d 926, 932 n. 9 (9th Cir.
2010) (citation omitted).
The Flathead Forest Plan was amended by INFISH in 1995. INFISH is
designed to protect inland native fish by reducing potential negative impacts to
aquatic habitat in priority watersheds in 22 National Forests. The Flathead River
and its tributaries are designated as a priority watershed under INFISH. INFISH
provides standards for four categories of streams or water bodies including a 300
foot buffer for fish-bearing streams; a 150 foot buffer on each side for all non-fish
bearing streams; and a 100 foot buffer for seasonally flowing or intermittent
streams. FS 0317.
Plaintiffs argue the Forest Service violated INFISH because the Project
40
shrinks the requisite buffer size without conducting the appropriate watershed
analysis or providing the site-specific data showing the buffers are not needed.
Plaintiffs contend the design criteria is inconsistent because it refers both to the
300 foot INFISH buffer and the 50 foot timber stand improvement buffer.
Defendants contend the application of both buffers is not inconsistent because
they were established for separate purposes.
Defendants appropriately applied INFISH Standard TM-1, which applies to
all Riparian Habitat Conservation Areas, and thus did not violate NFMA.
Standard TM-1 allows thinning when silvicultural methods are applied “in a
manner that does not retard attainment of Riparian Management Objectives and
that avoids adverse effects on inland native fish.” FS 0318. This Project was
designed to attain Riparian Management Objectives and its methods avoid adverse
effects on inland native fish. There will be no construction of roads, only handthinning of small trees will occur, and any activities within 50 feet of water require
on-site confirmation from a fisheries biologist that the thinning will have no
measurable effect on bank stability or temperature. The biological assessment
points out that the Project can benefit riparian management objectives by
increasing the size of remaining trees and increasing retention once they fall into
the stream, improving shading, maintaining stream temperatures, and providing
41
slash filters reducing any overland sediment. FS 8068.3 Standard TM-1 permits
timber activities that promote riparian management objectives anywhere within the
Riparian Habitat Conservation Area. Thus, the 300 foot buffer does not apply to
all Project activities, and Defendants did not err by applying both the 50 foot and
300 foot buffers to different aspects of the Project.
CONCLUSION
Defendants’ motion for summary judgment will be granted and Plaintiffs’
motion will be denied because the Project does not violate NEPA, the ESA,
NFMA, or the APA as alleged by Plaintiffs.
IT IS ORDERED that Plaintiffs’ motion for summary judgment (doc. 18) is
DENIED and Defendants’ cross motion for summary judgment (doc. 26) is
GRANTED. The Clerk of Court is directed to (1) enter judgment for Defendants
and against Plaintiffs in accordance with this Order and (2) close this case.
3
Plaintiffs’ argument that Defendants rely on post-decisional documents by
referencing administrative appeal documents fails because these documents are
not post-decisional. Section 706 of the APA, 5 U.S.C. § 706, provides for judicial
review of federal administrative actions based upon “the whole record or those
parts of it cited by the party.” “In general, review should be of ‘the full
administrative record that was before the [agency decisionmaker] at the time he
made his decision.’ ” Natural Resources Defense Council v. Norton, 2007 WL
14283 (E.D.Cal. 2007) citing Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 420 (1971).
42
Dated this 30th day of October, 2013.
43
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