Friends of the Wild Swan et al v. Salazar et al
Filing
63
ORDER granting in part and denying in part 41 MOTION for Summary Judgment filed by Friends of the Wild Swan, Natural Resources Defense Council, Montana Environmental Information Center, 48 Cross MOTION for Summary Judgment filed by S.M. R. Jewell, U.S. Fish and Wildlife Service, 51 MOTION for Summary Judgment filed by State of Montana Board of Land Commissioners, Montana Department of Natural Resource and Conservation. IT IS FURTHER ORDERED that this matter is remanded for the purpose of conducting the analysis required by 16 U.S.C. § 1539(a)(2)(B)(ii) as it relates to grizzly bears. IT IS FURTHER ORDERED that the Plan will remain in effect while this matter is on remand with the exception of the portion of th e Plan that abandons secure core grizzly bear habitat in the Stillwater Block. The agency is enjoined from implementing a new management approach regarding grizzly bear habitat in the Stillwater Block until the requirements of the ESA are met. IT IS FURTHER ORDERED that the Clerk of Court is directed to close this case. Signed by Judge Donald W. Molloy on 8/21/2014. (NOS, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
FRIENDS OF THE WILD SWAN;
MONTANA ENVIRONMENTAL
INFORMATION CENTER; and
NATURAL RESOURCE DEFENSE
COUNCIL,
CV 13-61-M-DWM
ORDER
Plaintiffs,
vs.
FILED
S.M.R. JEWELL, Secretary, U.S.
Department of Interior, in her official
capacity; and UNITED STATES FISH
AND WILDLIFE SERVICE,
AUG 2 1 2014
Clerk. u.s District Court
District Of Montana
Missoula
Defendants,
and
MONTANA BOARD OF LAND
COMMISSIONERS and MONTANA
DEPARTMENT OF NATURAL
RESOURCES AND CONSERVATION,
Intervenor-Defendants.
Plaintiffs are various environmental organizations who challenge the
Secretary of the Interior's issuance of an incidental take permit under the
Endangered Species Act ("ESA") and the National Environmental Policy Act
1
("NEPA") for proposed logging and road building activities to be carried out by
the Montana Department ofNatural Resources and Conservation (the
"Department") on state trust land in western Montana. The Secretary, through the
Fish and Wildlife Service ("Service"), issued the permit based on the
Department's habitat conservation plan ("the Plan"). Plaintiffs challenge the Plan
and the permit principally on the grounds that (1) the required mitigation is not the
maximum practicable for either bull trout or grizzly bears, (2) the no-jeopardy
determination for bull trout is arbitrary and unlawful, (3) the Service failed to take
a "hard look" at environmental impacts, (4) the Service did not consider a
reasonable range of alternatives, and (5) the Service did not consider the
cumulative impacts of climate change on bull trout. For the reasons discussed
below, Plaintiffs' motion is granted as it relates to mitigation measures for grizzly
bears and denied in all other respects.
FACTUAL BACKGROUND
The Department manages trust land throughout the State of Montana. FWS
22850. 1 It is required to manage these lands so that they will generate revenues
for Montana schools. HCP 1-4 to 1-6. In April 2003, the Service initiated
Citations to the Final EIS, HCP, and Biological Opinion are to the original
pagination ofthose documents. All other citations to the record are to the Administrative Record
and begin with FWS.
2
consideration of an application by the Department for an incidental take permit for
proposed logging and related road building activities on approximately 548,500
acres of state trust land in western Montana. 68 Fed. Reg. 22,412 (April 28, 2003)
(Notice of Intent to prepare EIS); FEIS ES-3 to ES-6; FWS 22850. This area
includes two large blocks of land owned by the Department and scattered parcels
across western and central Montana. FEIS ES-3. The blocks are the Stillwater
Block, which includes the Stillwater and Coal Creek State Forests, and the Swan
River State Forest. Id.
These lands provide habitat for a diverse array of aquatic life, with more
than 86 fish species known or expected to occur in the project area, including the
bull trout. Id. at 4-181. Following the listing of bull trout under the ESA in 1999,
64 Fed. Reg. 58910 (Nov. 1, 1999), critical habitat for the species was designated
by the Service in 2005, 70 Fed. Reg. 56212 (Sept. 26,2005). Under this
designation, the Service uses a "core area," "management unit," and "interim
recovery unit" hierarchy for purposes of consultation and recovery. BiOp IV-2.
The core areas are the smallest units, comprising several local populations. Id. at
3. There are 21 bull trout core areas distributed across the Plan project area. Id.
The entire Plan project area comprises 2.47 percent of the total habitat acres
occupied by bull trout within the bull trout core areas in Montana. Id. at 287.
3
Collectively, the core areas in Montana form regional management units, of which
two, the Clark Fork River and the Kootenai River Units, are contained within the
Plan project area. Id. at 3. These management units are in turn contained within
the Columbia River Interim Recovery Unit. Id. at 287.
The Plan project lands also provide a variety of wildlife habitat for
approximately 407 species of wildlife, including grizzly bears. FEIS 4-301. In
1975, the Service determined that grizzly bears in the lower forty-eight states were
in need of protection under the ESA as a threatened species. 40 Fed. Reg. 31,734
(July 28, 1975) (grizzly bear listing notice). Today, known grizzly bear
populations persist in the United States in only four areas, including the Northern
Continental Divide ecosystem in northwest Montana and the Cabinet-Y aak
ecosystem in northwest Montana and northern Idaho. BiOp 11-21. Both of these
population areas encompass state lands that are subject to the Plan. Id. at 36.
The Service published a Final Environmental Impact Statement ("EIS")
addressing the proposed incidental take permit on September 17,2010, and
completed its Biological Opinion addressing the proposed permit in December
2011; both determined that issuance of the permit would satisfy statutory
requirements. 75 Fed. Reg. 57,059 (Sept. 17,2010). In December 2011, the
Service issued a Record of Decision approving issuance of an incidental take
4
permit to the Department. FWS 20982-1020.
In analyzing the proposed incidental take permit, the Service relied on the
Plan prepared by the Department that covers a set of "forest management
activities" including logging and road construction, maintenance, and use. HCP l
IS to 1-16. To support increased logging activities, the Plan allows for a
corresponding increase in road density by 30-40 percent in the Plan project area.
See BiOp IV-213, 218, Table IV-13. In addition, the Plan substitutes "a
combination of seasonally secure areas and quiet areas" for the former "core
areas" set aside for grizzly bear preservation. Id. at 11-87. Plaintiffs' primary
concerns under the Plan include the effects on bull trout due to road building, the
possibility of delayed improvements to existing roads, and logging within the
riparian buffer and the effects on grizzly bears from the Department's
abandonment of the "core area" management approach in the Stillwater Block.
LEGAL STANDARDS
A.
Summary Judgment
A party is entitled to summary judgment if it can demonstrate ''that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is warranted where
the documentary evidence produced by the parties permits only one conclusion.
5
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). On a motion for
summary judgment, this Court must determine whether a fair-minded jury could
return a verdict for the non-moving party. Id at 252. Only disputes over facts that
might affect the outcome of the suit under the governing law will properly
preclude entry of summary jUdgment; factual disputes which are irrelevant or
unnecessary to the outcome are not considered. Id at 248.
B.
Administrative Procedure Act
Courts review claims regarding NEPA and the ESA under the
Administrative Procedure Act ("APA"), 5 U.S.C. § 706 et seq. Native Ecosystems
Council v. Dombeck, 304 F.3d 886,891 (9th Cir. 2002). Under the APA, a
"reviewing court shall hold unlawful and set aside agency action that is ...
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
the law." 5 U.S.C. § 706(2)(A). The court's scope of review is narrow, and the
court should "not [] substitute its judgment for that of the agency." Motor Vehicle
Mfrs. Assn. a/U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
A decision is arbitrary and capricious:
only if the agency relied on factors Congress did not intend it to
consider, entirely failed to consider an important aspect ofthe 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.
6
Gardner v. US. Bureau ofLand Mgt., 638 F.3d 1217, 1224 (9th Cir. 2011).
An agency's actions are valid if it "considered the relevant factors and
articulated a rational connection between the facts found and the choices made."
Id (citation and internal quotation marks omitted). As long as the record supports
the agency's decision, that decision should be upheld even if the record could
support alternative findings. Ark. v. Okla., 503 U.S. 91, 112-13 (1992). Review
of the agency's action is "highly deferential, presuming the agency action to be
valid." Buckingham v. Secy. of us. Dept. ofAgric., 603 F.3d 1073, 1080 (9th Cir.
2010). However, this presumption does not require courts to "rubber stamp"
administrative decisions "they deem inconsistent with a statutory mandate or that
frustrate the congressional policy underlying a statute." Bureau ofAlcohol,
Tobacco & Firearms v. F.L.R.A., 464 U.S. 89,97 (1983) (internal quotations
omitted).
ANALYSIS
I.
The ESA
Bull trout and grizzly bears are protected under the ESA-"the most
comprehensive legislation for the preservation of endangered species ever enacted
by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). While listed
under the ESA, wildlife species are shielded from a variety of harms, including
7
federal actions that would likely jeopardize the continued existence ofthe species
and any "taking" of individual members of the species by any person. 16 U.S.C. §
1536(a)(1). This "take" prohibition extends to injuries arising from habitat
degradation. Babbitt v. Sweet Home Chapter ofCommunities for a Greater Or.,
515 U.S. 687,699 (1995); 50 C.F.R. § 17.3.
Although taking of listed species is generally prohibited, § 10 of the ESA
provides an exception where the "taking is incidental to, and not the purpose of,
the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B). In
such circumstances, the Service may issue an incidental take permit to a third party
who applies for a permit and satisfies specific statutory criteria. Id. at §
1539(a)(2); 50 C.F.R. § 17.32(b). The permitting process is "rigorous," Ramsey v.
Kantor, 96 F.3d 434, 439 (9th Cir. 1996), requiring preparation of a habitat
conservation plan, 16 U.S.C. § 1539(a)(2)(A). The habitat conservation plan must
specify: (1) the impact that will result from the taking, (2) what steps the applicant
will take to minimize and mitigate such impacts and the funding that will be
available to implement these steps, (3) what alternative actions were considered
and why they are not being utilized, and (4) such other measures that the Secretary
may require as being necessary or appropriate for the plan. Id. Upon submission
of the permit application and related conservation plan, the Secretary shall issue
8
the permit if she finds:
after opportunity for public comment . . . that (I) the taking will be
incidental; (ii) the application will, to the maximum extent practicable,
minimize and mitigate the impacts ofsuch taking; (iii) the applicant will
ensure adequate funding for the plan will be provided; (iv) the taking
will not appreciably reduce the likelihood of survival and the recovery
of the species in the world; and (v) [other] measures, if any, required
[by the Secretary] will be met.
Id. at § 1539(a)(2)(B).
A.
The Service did not act arbitrarily or capriciously when it
determined the Plan mitigates take of bull trout to the maximum
extent practicable, but did when it reached the same conclusion
for grizzly bears.
To issue an incidental take permit, the Service must find that the habitat
conservation plan minimizes and mitigates the impacts of incidental take "to the
maximum extent practicable." 16 U.S.C. § 1539(a)(2)(B)(ii). The term
"maximum extent practicable" is not defined in the statute, nor in any formal
agency regulations. The Service's Habitat Conservation Planning Handbook
provides that the maximum extent practicable finding "typically requires
consideration of two factors: adequacy of the minimization and mitigation
program, and whether it is the maximum that can be practically implemented by
the applicant." See Habitat Conservation Planning Handbook at 7-3,4; FWS
82983. The Handbook further asserts that, to the extent mitigation "can be
9
demonstrated to provide substantial benefits to the species, less emphasis can be
placed" on whether mitigation is the maximum that can be practicably
implemented. Id.
An agency rule is arbitrary and capricious if it entirely fails to consider an
important aspect of the problem. Motor Vehicle Mfrs. Assn., 463 U.S. at 43. It is
plain on the face of the statute that the Service must make a finding that the Plan
mitigates take to the maximum extent practicable. Gerber v. Norton, 294 F.3d
173, 184 (D.C. Cir. 2002). The statutory language of "maximum extent
practicable" signifies "that the applicant may do something less than fully
minimize and mitigate the impacts of the take where to do more would not be
practicable." Natl. Wildlife Fedn. v. Norton, 306 F. Supp. 2d 920, 928 (E.D. Cal.
2004). "Moreover, the statutory language does not suggest that an applicant must
ever do more than mitigate the effect of its take of species." Id. Therefore, if the
Service rationally concludes based on the record before it that the level of
mitigation provided for under the Plan clearly compensates for the take that will
occur, the Service is under no obligation to inquire whether additional mitigation
is financially possible. Id. at 928-29; Natl. Wildlife Fedn. v. Norton, 2005 WL
2175874, *13 (E.D. Cal. Sept. 7, 2005). That being said, ifno such finding is
made-and the record does not indicate that the proposed mitigation fully
10
compensates for the take under a plan or the adequacy of the proposed mitigation
measures is a close call-the Service has an obligation to perform an independent
inquiry into not just whether the proposed mitigation is practical, but whether
greater mitigation would be impracticable. Gerber, 294 F.3d at 184-86; Natl.
Wildlife Fedn. v. Babbitt, 128 F. Supp. 2d 1274, 1292-93 (E.D. Cal. 2000). An
agency acts arbitrarily and capriciously when it fails to do so or relies solely on the
licensee's financial representations and determinations as to practicability.
Gerber, 294 F.3d at 185-86; Babbitt, 128 F. Supp. 2d at 1292.
Here, the Service found the measures under the Plan mitigate take of bull
trout and grizzly bears to the maximum extent practicable. Therefore, the Service
did not consider additional mitigation measures as they relate to either species. In
the case of bull trout, the Service's determination is supported by record. In the
case of grizzly bears, the Service failed to rationally justify its conclusion that the
Plan fully offsets take in light of the record.
1.
Bull Trout
The Plan at issue contains various measures to "minimize and mitigate" the
impact of the project on bull trout. The Plan purports to minimize mileage and
effects of new roads by incorporating an array of best practices and address
sediment from existing roads through remedial work and road inventories. BiOp
11
IV-206-208. Within the first ten years, the inventories will survey roughly 1,100
miles of project-area roads laying within watersheds, HCP 2-97, classifying each
road as a low, medium or high risk for sediment delivery, BiOp IV-204. Remedial
roadwork must then be completed within the Plan's first 15 years, id. at 205, and is
predicted to reduce sediment in each bull trout core area by between 62-79
percent, id. at 215. The Plan also commits to reducing total sedimentation in the
project area by roughly 10 percent (compared to the pre-Plan baseline) for each of
the Plan's five decades. Id. at 216; HCP 7-4.
In addition to provisions to prevent further effects from road-building, the
Plan provides for mitigation measures related to increasing logging, including a
50-foot harvest buffer in riparian areas. Although the Plan includes allowances for
selective harvest within the buffer zone of individual trees in order to emulate
natural disturbance regimes and to address insect and disease infestation, FWS
20753, the use of these allowances is limited to less than 20 percent ofthe
Riparian Management Zone2 area and must take into account the amount of the
Zone already affected by historic timber harvest or natural disturbances, BiOp IV
179, 242. The Plan further provides for continued monitoring of stream
2
The Riparian Management Zone is distinct from the 50-foot buffer included under
the Plan. Although the two overlap and at times may be the same, the boundaries of the Riparian
Management Zone are determined based on the average tree height in a particular area.
12
temperatures and, if any deficiencies or inadequacies are discovered, requires the
Department to collaborate with the Service to "devise and implement alternative
conservation commitments[.]" FEIS 4-286-87. Moreover, in all cases, the harvest
of trees located immediately adjacent to the stream is prohibited. Admin. R. Mont.
36.11.425(8); FWS 20816. Based on the above, the Service found the mitigation
provided for under the Plan more than compensates for the expected take of bull
trout. BiOp IV-189-90.
a.
Stream Temperature Model
Plaintiffs challenge the Service's reliance on a model it used to determine
whether logging activities under the Plan would adversely affect in-stream
temperatures. Even though the Plan may result in a limited increase in water
temperatures, the Service determined that "for all model scenarios over the entire
modeling period, the [Plan] provided equal or greater in-stream shade than
existing conditions." BiOp IV-189-90. "In addition, all of the scenarios evaluated
for the [Plan] indicate shade levels at least 10 percent greater than the established
target levels." Id. at 190. "Based on the shade analysis, the stream temperatures
are not expected to measurably increase from direct solar input, or indirectly from
moderate changes in microclimate or soil temperature expected to occur from the
13
selective harvest regimes used by [the Department].,,3 [d.
Plaintiffs contend the Service's reliance on this model is arbitrary and
capricious because it does not account for any logging in the Plan's 50-foot buffer.
See Lands Council v. Powell, 395 F.3d 1019, 1031-32 (finding that the Forest
Service violated NEPA by withholding information regarding the limitations of a
in-stream sedimentation model). However, the Service considered the potential
impact of logging within the 50-foot buffer, likening its effects to those found
under Alternative 1 (no action), and ultimately determined that modeling revealed
that temperature changes under the no action alternative would be relatively small.
HCP 4-281. Comparing this result, the Service concluded a 50-foot buffer, even
with the 20 percent allowance, would not measurably affect stream temperature.
BiOp IV-195. Although this modeling shows a marked decrease in the percentage
of shading in the next ten years under the no action alternative and only a return to
baseline shade levels in the long-term, it indicates that shade will generally remain
above target levels. FEIS 2-282-84. The Service's choice to overestimate the
impact of logging within the 50-foot buffer by analyzing a no-buffer situation was
within its discretion and it did not act arbitrarily or capriciously in choosing an
3
The Service also determined "overstory removal adjacent to the stream channel"
may result in a decrease in shade, but that it will not be significant due to the small area
impacted. BiOp N-190.
14
analytical tool that resulted in greater protection. See San Luis & Delta-Mendota
Water Authority v. Jewell, 747 F.3d 581, 610 (9th Cir. 2014) (upholding "an
agency's reliance on models that yield conservative data because the models
incorporate the higher of known potential values in assessing the overall risk."
(internal quotation marks, citation, and brackets omitted)).
b.
Short-Term Impacts of Road Construction
Plaintiffs raise the concern that the construction of new roads under the Plan
could outpace the proposed remedial work. See Natl. Wildlife Fedn. v. Norton,
2005 WL 2175874, at *3 (noting that the plan "contains several provisions
designed to ensure that its environmental objectives will be achieved and that
development will not outpace the acquisition ofmitigation lands."). When
weighed against the proposed remediation goals and the monitoring regime put in
place by the Plan, Plaintiffs' speCUlation on this point does not make the Service's
decision arbitrary or capricious. As discussed above, the Plan establishes a strict
timeline for compliance and goals for remediation. Moreover, the Plan includes
specific reporting requirements to ensure the balance between new construction
and remedial work is maintained, BiOp IV-211, and outlines several additional
practices that will be undertaken by the Department in its construction of new
roads, such as consultation with water resource specialists in certain circumstances
15
and site-specific mitigation measures, id. at 206-207, as well as the incorporation
of best management practices, id. at 228-29. The Service determined that "[t]he
combination of avoiding and minimizing impacts from new road design and
construction activities under the [plan] and performing timely corrective actions
on existing chronic sediment sources would result in an ultimate net benefit for the
[Plan] fish species." ROD B-18. The Service also found "[B]ecause the [Plan]
maintains or directs the trend upward for all the important habitat parameters
(stream temperature, sediment ... connectivity ... ) in most core areas for the 50
year Permit term, we expect a rate ofrecovery to be maintained or improve for bull
trout." BiOp IV-285. The Service considered the relevant factors and has
articulated a rational connection between those considerations and its
determination that the Plan fully mitigates the expected take of bull trout.
2.
Grizzly Bears
Before the Plan, the Department maintained the 39,600-acre Stillwater Core
as secure habitat for grizzly bears. 4 FEIS 3-4. Within this area, administrative or
commercial activities are restricted to the winter denning period, and there is no
salvage allowances unless activities are conducted during that period or though
4
"Secure habitat is defined ... as areas that are a minimum distance of 0.31 miles
from any open road or motorized trail and that receive no motorized use of roads or trails during
the period they are considered secure habitat." FEIS 6-5 to 6-6.
16
helicopter harvest. ld. at 6-6. Under the Plan, the Department will no longer
manage its lands as "secure core" habitat, but will implement a program of quiet
areas and spring management restrictions, which will disallow motorized uses of
these lands "during important seasonal times for grizzly bears." ld. The primary
justification provided by the Service for the change in management is that the
"core area" approach "effectively removed these lands from management" as they
were closed to motorized use for a period of 10 years. BiOp II-87.
The Plan is expected to result in take of grizzly bears as some female bears
are expected to be displaced from "key habitat." ld. at 83; ROD 21, B-5 to B-6.
The Plan also opens up what was once secure habitat to human use, which will
likely result in greater human-bear conflicts. ROD 21, B-5 to B-6. According to
the Service, the take will be small, however, because the trust lands managed by
the Department make up only a very small part of grizzly bear recovery zones (less
than 2 percent), FEIS 4-304, adverse effects will only be temporary, ROD 20, and
the Plan places strict limits on use, id. atA-17; FEIS G-74; BiOp II-137-38. The
Service further insists the take of grizzly bears under the Plan will be fully
mitigated, resulting in a net benefit for grizzly bears. ROD B-1 O. Plaintiffs
challenge this determination, arguing that the shift from the "core area" approach
to the "seasonally-secure" approach defies the best available scientific information
17
and the Service is required to investigate additional mitigation measures.
The Service concedes that the best way to protect grizzly bears is to restrict
human use and access to their habitat. BiOp II-16-18. As mentioned above, the
Service outlined the two primary approaches to achieving this goal; the "core
area" approach (status quo) and variations of the "seasonally-secure" approach
(proposed Plan). The Service considered the advantages and disadvantages of
each approach, determining that the Plan's ultimate goal of increasing revenue for
the Department was more compatible with the seasonally-secure option and that
the seasonally-secure option would mitigate the expected take under the Plan. In
reaching this decision, the Service relied on a peer reviewed study5 and the use of
a variation of the seasonally-secure approach in the Swan River State Forest.
The peer-reviewed study found the "core area" approach may not
encompass the best habitat as "potentially the best bear habitat may be in heavily
roaded areas while poor habitat is included in core areas. It is also possible that
roads may be closed at great expense in areas of poor habitat that will only have
marginal value to bears. By not incorporating habitat value, it is not possible to
make optimal trade-offs between costs ofroad closures to people and value to
5 McLellan, Bruce, M.A. Sanjayan, and Nova Silvy, Peer Review ofthe Motorized
Access Management Strategies for Grizzly Bear Habitat in the Northern Continental Divide
Ecosystem (Sept. 19,2000). See FWS 39403-15.
18
bears." FWS 39409-10. However, the Service never found that the core areas in
the Stillwater Core were comprised of inferior or poor habitat. Moreover, the
study further states that ''the assumptions made [under the seasonally-secure
approach] were too bold at this time to fully justify the added risk and
uncertainties created for grizzly bears under the proposed approach .... [W]e
caution against any relaxation of establishing permanently secure areas unless the
assumptions made meet a higher standard than demonstrate in this proposed
approach." FWS 39414. Although the Service responded to some of the concerns
raised in the study and adapted mitigation measures in response, FWS 82897-930,
it acknowledged that the seasonally-secure approach still lacked scientific support
for grizzly bear adaptation to closed roads, FWS 82915.
The Service also considered the use of a seasonally-secure model in the
Swan River State Forest, finding it "is successfully supporting [bear] population
connectivity from the Swan Range to the Mission Range across the Swan Valley."
ROD A-17. Although the record describes the effectiveness of this approach in
the Swan River context, it states that this success may have limited application in
other circumstances, as the conclusions drawn from the study "are limited to the
multi-ownership Swan Valley environment," involved a "limited female sample
size" and "limited early spring data," and concludes that "[n]o cause/effect
19
relationships are understood." FWS 58530. Any attempt by the Service to use
this case study to bolster the concerns raised in the peer review is thus limited.
Despite the limited scientific support for the proposed management
approach, the Service found mitigation measures under the Plan were sufficient,
merely asserting that the Plan expands the geographic scope of conservation
measures and grizzly bears will adapt to changing habitat conditions. BiOp 11-93.
Although the Court will not wade into scientific debates or determine which
management approach is best for grizzly bears, it must "ensure that the [agency]
made no 'clear error ofjudgment' that would render its action 'arbitrary and
capricious.'" Lands Council v. McNair, 537 F.3d 981,993, 1000 (9th Cir. 2008)
(en banc) (quoting Marsh v. Or. Natural Resources Council, 490 U.S. 360, 378
(1989)), overruled on other grounds by Am. Trucking Assns., Inc. v. City oIL.A.,
599 F.3d 1046, 1052 (9th Cir. 2009). The Service's conclusory statements do not
support its fmding that the Plan compensates for the expected take of grizzly
bears. If expanding the geographic area of the Plan as it relates to grizzly
bears-which the Service argues is a mitigation measure-results in its own take,
BiOp 11-129-30, it is unclear how the Service determined it was adequate to
mitigate take that would occur in the Stillwater Core. The Service has not
rationally justified its finding that the approach under the Plan constitutes a
20
complete offset-much less a net benefit-such that additional mitigation
measures did not even need to be considered. 6 Therefore, its finding that the Plan
mitigates the take of grizzly bears to the maximum extent practicable is arbitrary
and capricious.
To the limited extent Federal-Defendants contend such analysis was
performed, such a position is belied by the record. Although the record contains a
chart of implementation cost by alternative, FWS 14697, it does not include any
analysis as to whether the magnitude of such costs would render a greater
mitigation alternative impracticable. See Babbitt, 128 F. Supp. 2d at 1292
(holding that conclusory economic analysis is not sufficient to meet the
requirements of "maximum extent practicable" under the ESA). Rather, the
6
At the very least, the Service's uncertainty regarding how bears will respond and
adapt under the Plan makes the adequacy ofthe mitigation measures a close calL The Service's
Handbook states,
[P]articularly where adequacy of mitigation is a close call, the record must contain
some basis to conclude that the proposed program is the maximum that can be
reasonably required by the applicant. This may require weighing the benefits and
costs of implementing additional mitigation, the amount of mitigation provided by
other applicants in similar situations, and the abilities ofthat particular applicant.
Babbitt, 128 F. Supp. 2d at 1292 (quoting the Service Handbook). While this internal guidance
is not binding on the Service, W Radio Servs. Co. v. Espy, 79 F.3d 896, 902 (9th Cir. 1996), the
interpretations and opinions of an agency "constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guidance." Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944); see also Babbitt, 128 F. Supp. 2d at 1292 (even if the Handbook
language is not binding, it at least requires the Service to consider an alternative involving greater
mitigation).
21
Service relied entirely on the Department's representations as to practicability.
The Service states that the increased mitigation alternative "would decrease the
opportunity for timber harvest and would result in revenue loss; therefore,
implementing this alternative would not meet the economic feasibility screening
criteria." FEIS 3-32. The Service does not explain what that "economic
feasibility screening criteria" entails, stating only that the primary reason for the
change from the "core area" approach to the "seasonally-secure" approach was
that the implementation of the "core area" approach "impeded [the Department's]
ability to meet its trust mandate to generate revenue for the trust beneficiaries from
those lands." Id. at 6-6. This conclusion is undermined by the fact that the
Montana Supreme Court has held that the trust mandate is not limited to financial
return, but requires "maintenance efforts to ensure long-term sustainability" that
goes beyond "immediate financial benefit ...." Friends ofthe Wild Swan v. Dept.
ofNatural Resources & Conserv., 127 P.3d 394,398-99 (Mont. 2005). This is a
far cry from the strict revenue-generating view taken by both Federal-Defendants
and Defendant-Intervenors. Federal-Defendants admonish the Court not to
succumb to Plaintiffs' black and white view of take (either there is permanent core
habitat or there is impermissible take) while at the same time asking this Court to
accept their black and white view of revenue (either there is no core habitat or
22
there is no revenue). Both arguments are equally unpersuasive. Absent
independent investigation into the impracticability of greater mitigation measures,
the Service's finding that the Plan mitigates take of grizzly bears to the maximum
extent practicable is arbitrary and capricious.
B.
The Service's jeopardy analysis for bull trout is sufficient.
In addition to the responsibility to review the permit application for
compliance with the requirements of § 10, the Secretary must ensure that the
issuance of the permit is consistent with ESA § 7(a)(2). See 16 U.S.C. §
1536(a)(2). When considering whether to issue an incidental take permit, the
Service may only do so upon a finding that it "is not likely to jeopardize the
continued existence of' a protected species, or result in the destruction or adverse
modification of critical habitat. Id.; 50 C.F .R. § 402.01 (b). The Biological
Opinion must include "a summary of the information on which the [no jeopardy]
opinion is based, detailing how the agency action affects the species" based on
"the best scientific and commercial data available." 16 U.S.C. § 1536(a)(2),
(b)(3). Plaintiffs contend that the Service failed to consider an important aspect of
the problem when it failed to analyze the near-term habitat loss to the bull trout
population in light of that population's short life-cycle. See Pac. Coast Fedn. of
Fishermen's Assn. v. U.S. Bureau ofReclamation, 426 F.3d 1082, 1094 (9th Cir.
23
2005) (finding an agency's no jeopardy determination arbitrary and capricious
because it disregarded the short life-cycle of the coho salmon).
Here, the Service considered short-term impacts on bull trout in it no
jeopardy determination, specifically noting that increased short-term take will
occur in situations where significant road construction is occurring near core area
streams. BiOp IV -294-95. The Plan includes provisions that address short-term
concerns, such as annual monitoring and compliance requirements, id. at 211-12,
228-29, in addition to the inventories and remedial work on existing roads set
begin immediately and continue through the next 10-15 years, id. at 204-205.
Having properly considered all aspects of the problem, the Service's determination
is not arbitrary or capricious.
II.
NEPA
NEPA is a purely procedural statute, intended to protect the environment by
fostering informed agency decision-making. See Lockyer v. U.S. Dept. ofAgric.,
575 F.3d 999, 1012 (9th Cir.2009). NEPA "does not mandate particular results,
but simply provides the necessary process to ensure that federal agencies take a
hard look at the environmental consequences of their actions." High Sierra Hikers
Assn. v. Blackwell, 390 F.3d 630, 639 (9th Cir. 2004) (citation and internal
quotation marks omitted). Plaintiffs contend the Service violated NEPA by not (1 )
24
taking a hard look at environmental impacts, (2) studying a reasonable range of
alternatives, or (3) considering the cumulative effects of climate change on bull
trout. The Service has complied with NEPA.
A.
The Service took the requisite "hard look."
In reviewing the adequacy of an EIS, courts "employ a rule of reason to
determine whether the EIS contains a reasonably thorough discussion of the
significant aspects of probable environmental consequences." Kern v. U.S.
Bureau ofLand Mgmt., 284 F.3d 1062, 1071 (9th Cir. 2002) (internal quotation
marks and citation omitted). Review under this standard consists of determining
whether an agency has taken a "hard look." Id. "The rule ofreason analysis and
the review for an abuse of discretion are essentially the same," Id. at 1072. The
Court reviews the adequacy of an EIS using an objective good faith standard. Id.
Plaintiffs argue the Service failed to take a "hard look" at the environmental
impacts ofthe Plan, particularly in those areas previously discussed. As discussed
above, the only shortcoming of the Service's analysis is the adequacy of the
mitigation measures provided for grizzly bears. However, even in that context the
Service recognized the consequences to grizzly bears under the Plan, including
increased interactions with humans and displacement. The Service has engaged in
a reasonably thorough discussion of the significant environmental impacts of the
25
proposed action, meeting the "hard look" requirement.
B.
The Service considered a reasonable range of alternatives.
The scope of an agency's alternative analysis under NEPA is defined by the
stated purpose for the project. Native Ecosystems Council v. U.S. Forest Serv.,
428 F.3d 1233, 1246 (9th Cir. 2005). Here, the purpose and need for the Plan is to
"minimize take and conserve federally listed fish and wildlife species while
providing long-term regulatory certainty and flexibility for [the Department]'s
forest management practices on its [plan] project area lands." FEIS 1-9. The four
alternatives considered by the Forest Service included Alternative 1 (no action),
Alternative 2 (the proposed Plan), Alternative 3 (increased conservation), and
Alternative 4 (increased management flexibility). FEIS ES-6 to ES-9. Each
alternative includes roughly 1,322-1,408 miles of road. [d. at 4-85. Plaintiffs
contend the Service violated by NEPA by failing to consider a low-mileage option.
An agency "need only evaluate alternatives that are reasonably related to the
purposes of the project." League of Wilderness Defenders-Blue Mts. Biodiversity
Project v. U.S. Forest Serv., 689 F.3d 1060, 1069 (9th Cir. 2012) (citation and
internal quotations marks omitted); Native Ecosystems Council, 428 F.3d at 1247.
"An agency need not [] discuss alternatives similar to alternatives actually
considered, or alternatives which are infeasible, ineffective, or inconsistent with
26
the basic policy objectives for the management of the area." Bering Strait Citizens
for Responsible Resource Dev. v.
u.s. Army Corps ofEngrs., 524 F.3d 938,955
(9th Cir. 2008) (internal quotation marks and citation omitted). The agency must
"briefly discuss" the reasons why it eliminated any alternatives from detailed
study. 40 C.F.R. § 1502. 14(a); see St. ofCal. v. Block, 690 F.2d 753, 768 (9th Cir.
1982) (holding that the agency failed to consider a reasonable range of alternatives
when all of the considered alternatives included to substantial development).
Here, at Plaintiffs' request, the Service considered a "less road building"
alternative and ultimately rejected it as not economically feasible or operationally
practicable, finding it "would likely result in increased costs and lost revenue to
the trust beneficiaries, thereby not meeting [the Department]'s purpose and need."
FEIS 3-33, 0-139. Unlike the situation in Block, the Service has discussed the
alternative proposed by Plaintiffs and determined it was not feasible and would
not allow the Department to meet its trust mandate. See Ariz. Past & Future
Foundation, Inc. v. Lewis, 722 F.2d 1423, 1428 (9th Cir. 1983) ("Alternatives that
do not accomplish the purposes ofthe project may properly be rejected as
imprudent."). Accordingly, the Service complied with NEPA.
C.
The Service considered cumulative impacts of climate change.
A "cumulative impact" is ''the impact on the environment which results
27
from the incremental impact ofthe action when added to other past, present, and
reasonably foreseeable future actions ...." 40 C.F .R. § 1508.7. An analysis of
cumulative impacts requires the consideration of the combined effects of actions
"in sufficient detail to be useful to the decisionmaker in deciding whether, or how,
to alter the program to lessen cumulative impacts." Muckleshoot Indian Tribe v.
u.s. Forest Serv., 177 F.3d 800,810 (9th Cir. 1999) (internal quotation marks
omitted). "The impact of greenhouse gas emissions on climate change is precisely
the kind of cumulative impacts analysis that NEPA requires agencies to conduct."
CIr.for Biological Diversity v. Natl. Hwy. Traffic Safety Admin., 538 F.3d 1172,
1217 (9th Cir. 2008).
In response to public comment, the Final EIS includes a chapter that
addresses climate change. FWS 21690-705. This section discusses the causes of
climate change, its effects on forest management, projections for future
temperatures, the environmental impacts of increased temperatures, current
approaches to the issue, and a comparison ofthe effects of climate change across
the alternatives. Id. The Service also addressed the effect of climate change on
bull trout specifically, noting that "[f]uture loss of bull trout habitat due to climate
change within the interior Columbia River basin was predicted to be 18 to 92
percent of the habitat areas that are currently thermally suitable and 27 to 99
28
percent of large ... habitat patches." FEIS 4-231. The Service ultimately
concluded that "[g]lobal climate change may ultimately be a significant threat to
the persistence of native fishes because it will add to the current adverse effects of
invasive aquatic species and habitat degradation while increasing water
temperatures to potentially unsuitable thresholds." Id. at 4-247 (citation omitted).
Plaintiffs recognize that the Service included a fairly extensive discussion of the
effects of climate change in the Final EIS, (Pis.' s Br. in Support, Doc. 42 at 45),
but criticize the "disconnect" between this analysis and the Service's conclusions
regarding the environmental consequences of the Plan.
"[I]t is now well settled that NEPA itself does not mandate particular
results, but simply prescribes the necessary process." Robertson v. Methow Valley
Citizens Council, 490 U.S. 332,350 (1989). "If the adverse environmental effects
of the proposed action are adequately identified and evaluated, the agency is not
constrained by NEPA from deciding that other values outweigh the environmental
costs." Id. Further, an EIS does not need to contain a "complete mitigation plan
that is actually formulated and adopted." City ofCarmel-By-The-Sea v. U.S. Dept.
ofTransp., 123 F.3d 1142, 1154 (9th Cir. 1997) (internal quotation marks
omitted); see also Robertson, 490 U.S. at 352 ("There is a fundamental distinction
... between a requirement that mitigation be discussed in sufficient detail to
29
ensure that environmental consequences have been fairly evaluated, on the one
hand, and a substantive requirement that a complete mitigation plan be actually
formulated and adopted, on the other."). The Plan provides monitoring and
adaptive management practices to address the predicted effects. FEIS 4-157-58, 4
389. Despite Plaintiffs' criticisms, this flexible approach meets NEPA
requirements. See City ofCarmel-By-The-Sea, 123 F.3d at 1154 ("The proposed
mitigation plan is intended to be 'conceptual' only; the plan remains flexible to
adapt for future problems ...."). The Final EIS also specifically addresses
mitigating the impact of climate change on bull trout, stating "the additional
protective measures included in the action alternatives, specifically the no-harvest
buffers and certain limits on total riparian harvest, would likely reduce the risk of
adverse aquatic habitat effects ... anticipated from a changing climate." FEIS 4
298. Although Plaintiffs may be unhappy with the result, the Service's discussion
of the effects of climate change and relevant mitigating measures is sufficient
underNEPA.
CONCLUSION
Based on the foregoing, IT IS ORDERED that the parties' motions for
summary judgment (Docs. 41, 48, and 51) are GRANTED IN PART and DENIED
IN PART. Plaintiffs' motion is granted to the extent that the Service's
30
determination that the Plan mitigates take of grizzly bears to the maximum extent
practicable is arbitrary and capricious in violation of the ESA. Summary judgment
is granted in favor of Federal-Defendants and Defendants-Intervenor on all of
Plaintiffs' other claims.
IT IS FURTHER ORDERED that this matter is remanded for the purpose of
conducting the analysis required by 16 U.S.C. § 1539(a)(2)(B)(ii) as it relates to
grizzly bears.
IT IS FURTHER ORDERED that Plan will remain in effect while this
matter is on remand with the exception ofthe portion of the Plan that abandons
secure core grizzly bear habitat in the Stillwater Block. The agency is enjoined
from implementing a new management approach regarding grizzly bear habitat in
the Stillwater Block until the requirements of the ESA are met.
IT IS FURTHER ORDERED that the Clerk of Court is directed to close this
case.
Dated this 21 8t day of August, 2014 at 2: 14 p.m.
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