Swan View Coalition et al v. Weber et al
Filing
51
ORDER granting in part and denying in part 20 Motion for Summary Judgment and 28 Motion for Summary Judgment; denying 14 Motion to Supplement. The matter is remanded to the agencies to perform the necessary analysis and follow the necessary p rocedures under the ESA for water howellia, bull trout, and wolverine and to reassess its Section 7 analysis regarding the grizzly bear in light of the application of the correct access objective under Amendment 19. IT IS FURTHER ORDERED that Defenda nts are enjoined from implementing the Glacier Project while the proceedings required on remand are pending. Defendants are also enjoined from proceeding under the Agreed Operating Procedures until the necessary analysis has been performed. Signed by Judge Donald W. Molloy on 9/25/2014. (NOS, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
FILED
SEP 252014
~, 1:'.8. District Court
District Of Montana
Missoula
SWAN VIEW COALITION, FRIENDS
OF THE WILD SWAN, NATIVE
ECOSYSTEMS COUNCIL, and
ALLIANCE FOR THE WILD ROCKIES,
CV 13-129-M-DWM
ORDER
Plaintiffs,
vs.
CillP WEBER, Flathead National Forest
Supervisor, F AYE KRUEGER, Regional
Forester of Region One ofthe U.S. Forest
Service, UNITED STATES FOREST
SERVICE, an agency of the U.S.
Department of Agriculture, and UNITED
STATES FISH & WILDLIFE SERVICE,
an agency of the U.S. Department of the
Interior,
Defendants.
INTRODUCTION
This is an action for declaratory and injunctive relief pursuant to the
National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4331 et seq., the
National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600 et seq., and the
Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq. Plaintiffs are various
environmental organizations that challenge the United States Forest Service's
1
("Forest Service") and the United States Fish and Wildlife Service's ("Fish and
Wildlife Service"): (1) authorization of the Glacier Loon Fuels Reduction and
Forest Health Project ("the Project") on the Flathead National Forest and (2)
failure to conduct environmental analysis for decisions regarding the "Legacy
Lands" acquisition, operating procedures, and subsequent logging projects in the
grizzly bear and lynx analysis areas for the Project. The parties' respective
motions for summary judgment, (Docs. 20 and 28), are granted in part and denied
in part. Plaintiffs' motion to supplement, (Doc. 14), is denied.
BACKGROUND
I.
Legacy Lands Acquisition
In 2009, the Forest Service acquired title to approximately 111,740 acres of
private land previously owned by The Nature Conservancy, known as "Legacy
Lands." X21:59449-60058. 1 The lands were previously held by private parties
and are intermingled with Forest Service lands. X21 :59557. The Nature
Conservancy received a $250 million tax refund for the acquired lands, and the
Forest Service paid $1.00 in consideration. X21:059559-60. The Nature
Conservancy vested all trees ofmerchantable timber value as reserved logging
Citations to the administrative record are formatted as ZI:12345, where "ZI"
represents the document number, and "12345" the bates-stamped page number.
2
rights pursuant to 36 C.F.R. § 251.14. X21:59450-51. The Nature Conservancy's
deed to the Forest Service was also made subject to the "USFS-TNC Agreed
Operating Procedures Regarding Reserved Timber Harvest Rights" ("Agreed
Operating Procedures"). X21 :59451. The Agreed Operating Procedures "set[]
forth the terms and conditions under which [The Nature ConservancyJ exercise [sJ
its Timber Rights Reservation and manage[s] incidental and related matters" on
the donated lands in question. X21 :59526.
II.
The Project
The Project includes 37,320 acres and extends south and west of Condon,
Montana on the west side of Montana Highway 83 to the south end of Lindbergh
Lake. V2:44344. It includes 29,364 acres of public (Le., National Forest system)
lands and 7,956 acres of private lands. V2:44468. It implements a variety of
national, regional, and local management directives to reduce the risk of high
severity wildfire in areas of the Flathead National Forest. V3:44912. The Project
is also being undertaken to improve and maintain healthy forest stands, to prevent
insect and disease infestations, and to provide timber for commercial use.
V2:44913. The Project undertakes these objectives through ten different types of
silvicultural treatments on roughly 1,400 acres. V3:44969. It provides access to
treated units through an estimated 5.9 miles of temporary road construction and
3
provides for the closure and decommissioning of an estimated 8.4 miles of
National Forest System road. V3:44911.
In August 2012, the Forest Service published the Environmental
Assessment ("EA") for the Project. V2:44338. Several species listed under the
ESA are present in, or have designated critical habitat in, the Project area. The
Project is located in the Northern Continental Divide Grizzly Bear Ecosystem,
within the designated "grizzly recovery zone." V2:44635. The grizzly recovery
zone is divided into Bear Management Units and further divided into bear
management subunits. V2:44633. The Project is located primarily within the
boundaries of the Glacier Loon subunit, and a small portion falls within the Buck
Holland subunit. V2:44344. The Project area also lies within six different Lynx
Analysis Units. V2:44658-59.
The Forest Service analyzed each of the protected species in a Biological
Assessment and concluded the Project would have no effect on bull trout, bull
trout critical habitat, and water howellia. 2 J1 :16393, N2:26711. The Forest
Service determined the Project would not result in jeopardy to the wolverine
population. H17:2946-51, H160:11901-903. The Forest Service also concluded
2
Water howellia is a threatened plant species tmder the ESA. 59 Fed. Reg. 35860
(July 14, 1994).
4
the Project is not likely to adversely affect the grizzly bear, HI6:2856, will not
have significant large-scale negative cumulative effects on Canada lynx,
X20:59423, and is not likely to adversely modify or destroy lynx critical habitat,
X47:60948.
On February 13,2013, the Forest Service signed the Decision
NoticelFinding of No Significant Impact authorizing the Project. V3:44908.
Plaintiffs filed a timely administrative appeal, W2:45338-596, which the Forest
Service denied, WI9:45828; W21:45845; W23:45863; W25:45876. The Project
was expected to commence as early as July 14 or 15,2014, (Garrity Dec., Doc. 37
1 at, 9; Clay Dec. 38-1 at, 4), and to be fully completed by 2019, V3:44927. On
July 1,2014, Plaintiffs moved for a preliminary injunction to prevent the Project
from moving forward. (Doc. 36.) On July 14,2014, this Court denied that
injunction, (Docs. 40 and 41), and on July 15, Plaintiffs appealed that decision to
the Ninth Circuit, (Doc. 42). The appeal ofthis Court's ruling on the preliminary
injunction remains pending. Because an appeal under 28 U.S.C. § 1292(a)(I)
from an interlocutory order involving a preliminary injunction does not divest the
district court with jurisdiction to proceed with a decision on the merits, absent a
stay order issued by the Court of Appeals, this Court may proceed on the merits of
the parties' motions for summary judgment. See Ex parte Natl. Enameling &
5
Stamping Co., 201 U.S. 156, 162 (1906) ("The case, except for the hearing on the
appeal from the interlocutory order, is to proceed in the lower court as though no
such appeal had been taken, unless otherwise specifically ordered."); Plotkin v.
Pac. Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982).
Plaintiffs raise a number of concerns regarding the Project, including: (1)
whether the Forest Service's "no effect" determination for water howellia and bull
trout is arbitrary and capricious; (2) whether the procedural requirements of the
ESA were met in regards to the wolverine; (3) whether the Project violates
NFMA; (4) whether the agencies' analysis regarding grizzly bears, lynx, and lynx
critical habitat is sufficient; and (5) whether the Forest Service's decision not to
prepare an environmental impact statement ("EIS") is arbitrary and capricious.
SUMMARY CONCLUSION
Although Plaintiffs raise numerous challenges to the Glacier Loon Project
and the Legacy Lands acquisition and logging projects, very few of Plaintiffs'
claims have merit. In all respects, except the following, the Forest Service has
complied with both the ESA and NEPA. Plaintiffs correctly contend that the
agency was required to engage in ESA and NEPA analysis in the creation of the
Agreed Operating Procedures and for site-specific logging projects in the Project
area. Regarding the analysis of the Project, the Forest Service's "no effect"
6
determination for water howellia and bull trout is arbitrary and capricious, and the
Forest Service failed to follow the necessary procedures under the ESA after
reaching a "may affect" conclusion for the wolverine. Further, the Forest Service
applied the incorrect standard under Amendment 19, requiring it to reconsider its
Section 7 analysis of grizzly bear under the numerical access objectives in the
Forest Plan.
LEGAL STANDARDS
I.
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.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Only disputes over
facts that might affect the outcome of the lawsuit will preclude entry of summary
judgment; factual disputes that are irrelevant or unnecessary to the outcome are
not considered. Id. at 248.
II.
Administrative Procedure Act
Courts review claims regarding the ESA, NEPA, and NFMA under the
Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. See Native
7
Ecosystems Council v. Dombeck, 304 F 3d 886, 891 (9th Cir. 2002) (ESA and
NEPA); Sierra Forest Legacy v. Sherman, 646 F3d 1161, 1176 (9th Cir. 2011)
(NEPA and NFMA). Under the APA, a "reviewing court shall hold unlawful and
set aside agency action ... found to be ... arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with 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. o/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 of the problem,
or offered an explanation that runs counter to the evidence before the
agency or is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.
Gardner v.
u.s. Bureau o/Land Mgt., 638 F3d 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. (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."
8
Buckingham v. Secy. of u.s. 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 quotation marks
omitted).
ANALYSIS
I.
The Legacy Lands Acquisition
A federal agency is only required to perform analysis under the ESA and
NEPA if the conduct in question amounts to "agency action" under the ESA or
"major federal action" under NEPA. There is no ESA or NEPA analysis for the
Legacy Lands acquisition or the reserved logging rights on those lands.
X15:59357-59. Plaintiffs contend the acquisition of the Legacy Lands, the
operating procedures for the reserved logging rights, and the site-specific logging
projects all qualify as "agency action" and "major federal action" and the Forest
Service is therefore required to perform analysis under the ESA and NEPA with
regard to those actions. Considering the Agreed Operating Procedures and site
specific logging projects, Plaintiffs are correct.
A.
Agency Action
9
Section 7 of the ESA defines agency action as "any action authorized,
funded or carried out by [a federal] agency." 16 U.S.C. § 1536(a)(2). The ESA
implementing regulations provide:
Action means all activities or programs of any kind authorized, funded
or carried out, in whole or in part, by Federal agencies in the United
States or upon the high seas. Examples include, but are not limited to:
(a) actions intended to conserve listed species or their habitat; (b) the
promulgation of regulations; (c) the granting of licenses, contracts,
leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions
directly or indirectly causing modifications to the land, water, or air.
50 C.F .R. § 402.02. The term "agency action" is interpreted broadly. Karuk Tribe
o/Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1020 (9th Cir. 2012) [hereinafter
Karuk Tribe]. "Under [] established case law, there is 'agency action' sufficient to
trigger the ESA consultation duty whenever an agency makes an affirmative,
discretionary decision about whether, or under what conditions, to allow private
activity to proceed." Id. at 1027. The "agency action" inquiry is two fold. First,
has a federal agency affirmatively authorized, funded, or carried out the
underlying activity? Second, does the agency have some discretion to influence or
change the activity for the benefit of a protected species? Id. at 1021. The
complicating question here is to what extent Section 7 ofthe ESA applies where a
private entity has vested logging rights on land donated to the Forest Service and
the impact of the Forest Service's continued ability to influence private conduct
10
when its authority is limited by the terms outlined in the Agreed Operating
Procedures.
1.
Legacy Lands Acquisition
Plaintiffs first argue the acquisition ofthe Legacy Lands qualifies as
"agency action" requiring consultation under the ESA. The land in question was
"donated to the United States ... for the Forest Service ... at no cost to the United
States." X21 :59525; 7 U.S.C. § 2269 (governing gifts of property to the United
States Department of Agriculture). Pursuant to Title 7 ofthe United States Code,
the Secretary is "authorized to accept, receive, hold, utilize, and administer" gifts
of land. 7 U.S.C. § 2269. Defendants argue, however, that the Secretary had no
choice but to accept the donation pursuant to the statute governing conservation
bonds. Pursuant to 26 U.S.C. § 54B(e)(2), under "qualified forestry conservation
bonds," "[a]t least half the land acquired [by a State or non-profit organization]
must be transferred to the United States Forest Service at no net cost to the United
States." This provision gives no discretion to the Forest Service to decide whether
or not to accept the donation. This means the requirements of Karuk Tribe have
not been met and the acquisition of the land is not "agency action" under the ESA.
2.
Agreed Operating Procedures
On March 9,2010, The Nature Conservancy and the Forest Service entered
11
into the Agreed Operating Procedures to manage The Nature Conservancy's
commercial logging projects on the Legacy Lands. X21 :59541. "Negotiating and
executing contracts constitute agency action under the ESA." Tinoqui-Chalola
Council ofKitanem uk & Yowlumne Tejon Indians v. U.S. Dept. ofEnergy, 232
F.3d 1300, 1306 (9th Cir. 2000); Nat. Resources Defense Council v. Houston, 146
F.3d 1118, 1125 (9th Cir. 1998). The joint promulgation of the Agreed Operating
Procedures here shows affirmative authorization by the Forest sufficient to fall
within the broad definition of "agency action" under Section 7 of the ESA. See
Sierra Club v. Babbitt, 65 F.3d 1502, 1508 (9th Cir. 1995) (noting that "after
enactment of the ESA the execution of a reciprocal right-of-way agreement clearly
would implicate section 7(a)(2)"); Conner v. Burford, 848 F.2d 1441, 1454-58
(9th Cir. 1988) (holding the Bureau of Land Management must comply with
Section 7 by identifying all potential impacts on a protected species of all post
leasing activities before entering into lease agreement). In authorizing the Agreed
Operating Procedures, the Forest Service also had the discretion to implement
more protective measures for protected species. See Nat. Resources Defense
Council v. Jewell, 749 F.3d 776, 784-85 (9th Cir. 2014) (en banc) (finding agency
action where agency had ability to renegotiate different contract terms for the
benefit of protected species). The promulgation ofthe Agreed Operating
12
Procedures is "agency action" requiring analysis under the ESA. The Forest
Service is enjoined from proceeding under the terms of the Agreed Operating
Procedures until the necessary analysis is performed.
3.
Site-Specific Logging Projects
As a preliminary matter, there may be an issue as to whether or not this
issue is moot as Defendants have indicated all logging projects by The Nature
Conservancy in the Glacier Loon analysis area have been completed. (Doc. 35 at
7); X20:59407 ("Harvest plans for ... projects in the Glacier Loon and Buck
Holland subunits which have been received have been for the Fredswood, Last
Gasp, Barber Chair, Beaver Highway Projects. These projects have been
completed."); X20:59422. Although the record indicates "harvest activities are
expected to continue on Legacy Lands," X20:59422, its does not state whether
such lands would be in the Project area. The Ninth Circuit has held an
environmental claim moot where remedial action is no longer available. Sierra
Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir. 1988) (regarding a challenge to a
completed mining project). Neither party addresses this issue.
"Where private activity is proceeding pursuant to a vested right or to a
previously issued license, an agency has no duty to consult under Section 7 if it
takes no further affirmative action regarding the activity." Karuk Tribe, 681 F.3d
13
at 1021. "Similarly, where no federal authorization is required for private-party
activities, an agency's informal proffer of advice to the private party is not 'agency
action' requiring consultation." Compare id. at 1021, 1023 (finding the Forest
Service's approval, denial, and continued compliance inspections of "Notices of
Intentions to Mine" demonstrated the Forest Service's actions were not merely
advisory but provided the agency with discretionary control) with Marbled
Murrelet v. Babbitt, 83 F.3d 1068, 1074-75 (9th Cir. 1996) (finding informal
advice given by an agency under its power to enforce Section 9 of the ESA does
not give rise to an affirmative act) and Sierra Club, 65 F.3d at 1511 (finding the
federal agency lacked the discretion to influence the private action where the
project could proceed without authorization and the agency's discretionary control
was severely circumscribed).
The facts here fall between Karuk Tribe and Sierra Club. Like the situation
in Karuk Tribe, The Nature Conservancy is required to submit a proposed Harvest
Plan to the Forest Service before it engages in harvest activity. The Forest Service
then issues a Harvest Plan Notice stating whether or not the proposed harvest
complies with the Agreed Operating Procedures within fifteen business days.
X21 :59536. However, similar to the situation in Sierra Club, the Forest Service's
discretion is circumscribed as it can only consider compliance with the Agreed
14
Operating Procedures in its review of the Harvest Plan, X21 :59537, and, arguably,
the harvest can go forward without any affirmative action on the part ofthe
agency, X21 :59536 (stating that if the Forest Service does not submit a Harvest
Plan Notice within the requisite time, it is deemed to have accepted the plan and
the harvest can go forward). Under such circumstances, it does not appear the
Forest Service can do anything to stop a specific logging project from going
forward.
The Ninth Circuit has voiced concern over triggering the burdensome
bureaucratic procedures of Section 7 when the agency is merely providing advice
as to the best way to protect a species, noting the potential to stifle desirable
communications between private entities and federal agencies and that the
"protection of threatened and endangered species would suffer." Marbled
Murrelet, 83 F.3d at 1075. However, the relationship here appears to rise above
an informal proffer of advice and, arguably, results in Forest Service authorization
ofthe individual projects. Although a close question, the first prong ofthe Karuk
Tribe test has been met.
Equally debatable is whether or not the Forest Service has discretion or
control over the private action in question, implicating the second prong of the
Karuk Tribe inquiry. Unlike the governing document in Sierra Club, the Agreed
15
Operating Procedures include provisions requiring environmental protections be
upheld, such as compliance withe the Swan Valley Grizzly Bear Conservation
Agreement and the Native Fish Habitat Conservation Plan. X21:59527. The
reserved logging rights regulation also provides the Forest Service with
discretionary control as it requires agency approval of road building activities. 36
C.F.R. § 251.1S(a)(S). Recently, the Ninth Circuit reasserted the low standard for
discretionary control in assessing "agency action," holding that "so long as a
federal agency retains 'some discretion' to take action to benefit a protected
species," Section 7(a)(2)'s consultation requirement is triggered. Nat. Resources
Defense Council, 749 F3d at 784. Moreover, "[t]he agency lacks discretion only
if another legal obligation makes it impossible for the agency to exercise
discretion for the protected species' benefit." Id.; see also Turtle Island
Restoration Network v. Natl. Marine Fisheries Serv., 340 F 3d 969, 976-77 (9th
Cir. 2003) (holding that because the Compliance Act entrusted the Fisheries
Service with discretion to issue permits to inure to the benefit of the species, ESA
consultation was required). In this case, the Agreed Operating Procedures do not
deprive the Forest Service of discretion to shape future logging plans for the
benefit of protected species.
Because both prongs under Karuk Tribe have been met (agency
16
authorization and discretionary control), the approval of site-specific logging
projects amounts to "agency action" under the ESA. As there are no current site
specific projects in the Project area, the agency must perform the requisite analysis
for future site-specific projects in the Project area.
B.
Major Federal Action
NEPA requires federal agencies to take a "hard look" at the environmental
consequences of their proposed actions before making a final decision to proceed.
St. o/Cal. v. Block, 690 F.2d 753, 761 (9th Cir. 1982). Pursuant to NEPA, an
agency must follow certain procedural rules and perform specific analysis for
"major federal actions" that may significantly affect the environment. 42 U.S.C. §
4332(2)(C). "Major federal actions" include "new and continuing activities,
including projects and programs entirely or partly financed, assisted, conducted,
regulated, or approved by federal agencies [and] new or revised agency rules,
regulations, plans, policies, or procedures." 40 C.F .R. § 1508.18(a). Major federal
action also includes the "[a]pproval of specific projects, such as construction or
management activities located in a defined geographic area. Projects include
actions approved by permit or other regulatory decision as well as federal and
federally assisted activities." Id. at § 1508.l8(b)(4). The existence of "major
federal action" under NEPA is a jurisdictional prerequisite and is assessed based
17
on (1) the degree to which the given action is funded by the federal agency and (2)
the extent ofthe federal agency's involvement and control. Rattlesnake Coalition
v. E.P.A., 509 F.3d 1095, 1101 (9th Cir. 2007). Although the "major federal
action" standard is similar to the more liberal "agency action" standard under the
ESA, the terms are not interchangeable. Karuk Tribe, 681 F.3d at 1024. NEPA
requires a finding that the action in question is a major action as opposed to
merely a marginal one. Id.; Penfold, 857 F.2d at 1313-14.
1.
Legacy Lands Acquisition
As discussed above, the Forest Service did not have discretionary control
over whether or not the land was accepted. This fact is distinguishable from the
case relied upon by Plaintiffs, where the agency had discretion to impose terms
and conditions on the transaction and approve or disapprove of the transaction
based on the acceptability of the lands in question. See RESTORE: The N. Woods
v. Us. Dept. ofAgr., 968 F. Supp. 168, 175 (D. Vt. 1997) (finding the agency was
required to engage in NEPA analysis). As the Legacy Lands acquisition does not
amount to "agency action" under the more liberal standard of the ESA, it does not
amount to "major federal action" under NEPA. Grand Canyon Trust v. Us.
Bureau ofReclamation, 691 F.3d 1008, 1022 (9th Cir. 2012); see Marbled
Murrelet, 83 F.3d at 1075 ("Where ... there is no 'agency action' under what is
18
probably the more liberal standard ofthe ESA, there is no 'major federal action'
under the more exclusive standard ofNEPA.").
2.
Agreed Operating Procedures and Site-Specific Projects
The regulatory definition of "major federal action" requiring NEPA analysis
includes "new [] agency ... procedures." 40 C.F.R. § 1508.18. "The time for an
agency to give a hard look at environmental consequences, and the opportunity for
serious NEPA litigation on whether alternatives were adequately considered,
should come in this context at the points where an agency establishes operating
criteria ... or embarks on some significant shift of direction in operating policy ..
.." Grand Canyon Trust, 691 F.3d at 1022 (regarding operation of the Glenn
Canyon Dam). The adoption of the Agreed Operating Procedures in the present
case falls within this category of action, requiring the Forest Service to follow the
requisite NEPA procedures. Similarly, "major federal action" includes the
"[a]pproval of specific projects," 40 C.F .R. § 1508.18(b)(4), requiring the Forest
Service to engage in NEPA analysis for future site-specific logging projects as
well.
II. The Project
A.
The Forest Service's "no effect" conclusion for water howellia,
bull trout, and bull trout critical habitat is arbitrary and
capricious.
19
An agency has a duty to consult under Section 7 of the ESA for any
discretionary agency action that "may affect" a listed species or designated critical
habitat. Karuk Tribe, 681 F 3d at 1027. "An agency may avoid the consultation
requirement only if it determines that its action will have 'no effect' on a listed
species or critical habitat." ld. "[A]ctions that have any chance of affecting listed
species or critical habitat--even if it is later determined that the actions are 'not
likely' to do so--require at least some consultation under the ESA." ld. The "may
affect" threshold is very low and includes "[a]ny possible effect, whether
beneficial, benign, adverse or of an undetermined character." ld. (internal
quotation marks and italics omitted).
Here, the Forest Service determined the Project "indirectly affects" water
howellia but determined through the imposition of a buffer zone that the impact is
sufficiently mitigated as to result in "no effect." V2:44S20-21. Because this
determination ignores the low threshold for "may affect," the Forest Service is
required to engage in at least some consultation under the ESA. See Karuk Tribe,
681 F3d at 1028 (finding the imposition of mitigation measures in an attempt to
reduce impacts weighs against a finding of "no effect").
20
Considering bull trout,3 the Forest Service found that although some
sedimentation will occur, it will result in no impact to bull trout in the Glacier
Creek watershed or at Lindbergh Lake. N2:26709-10. The Forest Service
determined there would be no "downstream, cumulative effects to bull trout in
Swan River or Swan Lake." N2:27710. However, the EA states the Project will
have "trivial impacts on bull trout habitat in [the] Glacier Creek Analysis Area."
V2:44630. This is sufficient to trigger ESA consultation under the low "may
affect" threshold. See Native Ecosystems Council v. Krueger, 946 F. Supp. 2d
1060, 1079 (D. Mont. 2013) ("While the 'disturbance effects' may be discountable
or insignificant ... 'any possible effect' requires the Forest Service to obtain the
concurrence of the Wildlife Service in order to avoid consultation.").
B.
The Forest Service failed to comply with the implementing
regulations of the ESA regarding the wolverine.
Ifwithin an action area a proposed species "may be present, [the action]
agency shall conduct a biological assessment." 16 U.S.C. § 1536(c)(I). A
biological assessment "shall evaluate the potential effects of the action on ...
proposed species ... and proposed critical habitat ... and determine whether any
3
Bull trout was listed as a threatened species in 1999. 64 Fed. Reg. 58910 (Nov. 1,
1999). The Fish and Wildlife Service has designated bull trout critical habitat. 75 Fed. Reg.
63898 (Oct. 18,2010).
21
such species or habitat are likely to be adversely affected by the action and is used
in determining whether formal consultation or a conference is necessary." 50
C.F.R. § 402.12(a). The contents ofthe biological assessment are at the discretion
ofthe agency and depend on the nature of the action. Id. at § 402.12(f). "A failure
to prepare a biological assessment is comparable to a failure to prepare an
environmental impact statement." Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir.
1985). "A plaintiffs' burden in establishing a procedural violation is to show that
the circumstances triggering the procedural requirement exist, and that the required
procedures have not been followed." Id. at 765.
Here, the wolverine was proposed for listing under the ESA on February 4,
2013, 78 Fed. Reg. 7864 (Feb. 4, 2013), and wolverines are known to be present in
the Project area, V2:44721. In September 2012, the Forest Service prepared the
terrestrial species Biological Assessment for the Project and, because it had not yet
been proposed for listing, the wolverine was not included in that assessment.
HI6:2834-905. But, because the wolverine was a "sensitive species" under the
Forest Plan, the Forest Service assessed the effects of the Project on the wolverine
in a Biological Evaluation. H17: 2946-51. In that Biological Evaluation, the
Forest Service concluded the project "[m]ay impact individual [wolverines] or
habitat, but will not likely contribute to a trend towards F ederallisting or loss of
22
viability of population or species." H17: 2951.4 On February 22,2013, the Forest
Service prepared an additional analysis on whether the Project would jeopardize
wolverines, concluding "the project would not result in Jeopardy to the wolverine
population." H160: 11901-903. Plaintiffs have failed to present any argument as
to why these two documents, when considered together, do not qualify as a
biological assessment in light of the discretion given to the agency in fashioning
such an analysis. The Forest Service has met the regulatory requirement that it
prepare a biological assessment on the wolverine.
Even so, a determination by the Forest Service in a biological assessment
that an action "may affect" a listed species gives rise to consultation under Section
7 ofthe ESA. Karuk Tribe, 681 F.3d at 1027. Formal consultation is not required
if the Forest Service finds that while a project "may affect" a listed species, the
species is "not likely to be adversely affected" and the Fish and Wildlife Service
concurs in writing. 50 C.F.R. §§ 402. 12(j)-(k), 402. 14(b)(1), 402. 13(a). There is
no indication the Fish and Wildlife Service concurred in writing with the Forest
Service's determination regarding the wolverine. Absent such concurrence or
4
Although it does not include analysis on the issue, the Biological Assessment
states the "[i]mplementation of the proposed project would not jeopardize the wolverine."
X20:59389.
23
formal consultation, the procedural requirements ofthe ESA have not been met.5
c.
NFMA
NFMA provides for forest planning and management at two levels: the forest
level and the individual project level. 16 U.S.C. § 1604; Ohio Forestry Assn. v.
Sierra Club, 523 U.S. 726, 729-30 (1998). At the forest level, the agency develops
a Land and Resources Management Plan, i.e., "forest plan." Once the forest plan is
approved, the Forest Service implements the plan by approving or denying sitespecific actions. Forest Guardians v.
u.s. Forest Serv., 329 F.3d 1089, 1092 (9th
Cir.2003). The Forest Service's failure to comply with a forest plan is a violation
ofNFMA. Native Ecosystems Council v.
u.s. Forest Serv., 418 F.3d 953, 961 (9th
Cir.2005). Plaintiffs challenge the Project's compliance with the Forest Plan in
this case as it relates to Amendment 19, which provides protection for grizzly
bears, and Amendment 21, which governs old growth forests.
1.
Amendment 19
Plaintiffs insist the strict numerical objectives under Amendment 19 apply to
those subunits that became predominantly National Forest System lands following
5
On August 13, 2014, the United States Fish and Wildlife Service withdrew its
proposal to list the wolverine as a threatened species in the contiguous United States. 79 Fed.
Reg. 47521 (Aug. 13,2014). This decision may also impact the Service's consideration of the
wolverine on remand.
24
the Legacy Lands acquisition and the failure to meet the Amendment 19 access
objectives results in unpermitted take of grizzly bears. Defendants retort Plaintiffs'
"take" argument is barred because the agency did not receive proper notice ofthe
claim under the ESA and, even if addressed on the merits, Plaintiffs' claims should
fail. Plaintiffs are correct as to which access standard under Amendment 19 applies
and properly provided notice under the ESA. However, the agencies did not
violate Section 9 of the ESA, and it is only following remand for consideration of
the correct access objective standard that the Court can determine whether the
agencies' Section 7 conclusion is arbitrary and capricious.
a.
Access Objectives
The Forest Service implemented Amendment 19to set enforceable standards
to minimize negative impacts to grizzly bears from roads. T157:42799-801.
Amendment 19 includes forest-wide standards for grizzly bears that provide for no
net increase in open motorized access density and no net decrease in the amount or
size of security core area. T157:42800. The access objectives under Amendment
19 then distinguish between lands that are predominantly (greater than 75 percent)
National Forest System lands and those that are not. For those Bear Management
Unit subunits comprised of predominantly National Forest System lands, numerical
objectives are placed on limiting road density, and the maintenance of certain
25
percentages of security core areas is required. 6 ld. Subunits that are not
predominantly National Forest System lands are governed by broader objectives
that generally ensure Forest Service activities will not result in an increase in road
density or reduction in security core areas. ld. These "access density objectives ..
. are not discretionary." TI57:42867.
The dispute in this case is whether the Amendment 19 numerical access
objectives apply to the subunits in the Project area, which include the Glacier Loon
and the Buck Holland subunits. This issue arose largely due to The Nature
Conservancy's 2010 donation of land to the Forest Service, which included land in
the Glacier Loon and Buck Holland subunits. X20:59407-409. Following the
transfer, the Forest Service's ownership percentage in the two subunits increased
above 75 percent. H2:2634. Plaintiffs insist because this meets the threshold
described in Amendment 19, the amendment applies to these subunits. Defendants
argue because The Nature Conservancy reserved its right to all merchantable trees
6
B.
Forest-wide Objectives for Grizzly Bear
On all BMU subunits that are predominantly (greater than 75 percent) National Forest System
land, our objective is to:
- limit high-density (> 1 mile/square mile) open motorized access to no more than 19 percent of a
BMU Subunit within 5 years;
- limit high-density (> 2 miles/square mile) total motorized access to no more than 24 percent of
a BMU subunit in 5 years, and no more than 19 percent in 10 years; and
- provide security core areas that equal or exceed 60 percent of each BMU Subunit in 5 years,
and 68 percent in 10 years. T157:42800.
26
until December 31, 2018, the Forest Service has no regulatory authority over the
harvest and associated road use until that time and only the general requirements
preventing net increase in road density and net decrease in security core area apply.
Y8:61798.
"An agency's position that is contrary to the clear language of a Forest Plan
is not entitled to deference." Native Ecosystems Council, 418 F 3d at 962. Here
the Forest Service has chosen not to consider the lands acquired from The Nature
Conservancy in 2010 as National Forest System lands. This interpretation is
inconsistent with the language of Amendment 19, which does not allow the Forest
Service to exclude lands subject to reserved logging rights from its calculation of
National Forest System lands.1 If the Forest Service thinks the subunit objectives
are not workable in situations involving reserved logging rights, it should propose
amendments to the Forest Plan to somehow deal with situations involving reserved
logging rights. See id. at 961 (recommending that instead of discounting the
requirements of the applicable forest plan, the agency should go through the proper
1
Defendants insist because the Decision Notice for Amendment 19, TIS7:42806,
lists the two subunits as not being predominantly National Forest System lands, it reasonably
assumed they did not qualify. This static interpretation of the Forest Plan is not reasonable or
persuasive. At the time the Decision Notice was written there were 14 subunits that did not
qualify as predominantly National Forest System lands. However, instead of merely saying those
14 were excused from the numerical objectives under Amendment 19, the amendment applies a
percentage-based standard, which implies it could-and would-apply to other subunits if their
composition changed in the future.
27
process to amend it). Under the Forest Plan as it currently stands, the specific
numerical objectives required for lands that are predominantly National Forest
System lands under Amendment 19 apply to the Glacier Loon and Buck Holland
subunits.
Plaintiffs argue these subunits do not currently comply with Amendment 19.
V2:44644,44657. However, the numerical access objectives themselves provide
for an extended schedule of5-10 years for compliance, TI57:42800, and the
schedule for Amendment 19 has been modified to "through 2018 or until the Forest
Plan revision is completed, whichever comes first," Y8:61799. Arguably, this
allows time for the Forest Service to bring its actions into compliance.
b.
Notice under the ESA
The ESA, 16 U.S.C. § 1540(g)(1), provides for "citizen suits" to enforce
provisions of the Act. However, no suit may be commenced "prior to sixty days
after written notice of the violation has been given to the Secretary." 16 U.S.C. §
1540(g)(2)(A). This notice requirement is jurisdictional and cannot be waived.
Save the Yaak Comm. v. Block, 840 F.2d 714, 721 (9th Cir. 1988). "A failure to
strictly comply with the notice requirement acts as an absolute bar to bringing suit
under the ESA." S. W. Ctr. for Biological Diversity v. U.S. Bureau ofReclamation,
143 F.3d 515, 520 (9th Cir. 1998). At a minimum, the plaintiff must "provide
28
sufficient information ofa violation so that the Secretary or [the agency] could
identify and attempt to abate the violation." Id. at 522.
Here, Plaintiffs' 60-day notice is adequate to put the agency on notice of a
claim under Section 9 of the ESA. Plaintiffs submitted two letters indicating an
intent to sue under the ESA. X6:45893-97; XI6:59364-69. The first letter, dated
March 19,2013, mentions the grizzly bear, contending the "may affect, not likely
to adversely affect" finding is arbitrary and capricious. X6:45896. This letter also
generally provides: "The agencies have ignored their duties under the ESA ... to
ensure that ... their actions do not result in unauthorized take of these species of
wildlife." X6:45897. The second letter, dated June 20,2013, more specifically
addresses Amendment 19 and the effect of the Legacy Lands acquisition, stating
"The agencies must reinitiate and complete consultation on A19 to comply with
ESA Section 7 and must receive an adequate incidental take permit to comply with
Section 9." X16:59368 (emphasis in original). Plaintiffs' letters indicate a specific
concern regarding the grizzly bear and the expected take in relation to compliance
with Amendment 19. See S. W Ctr./or Biological Diversity, 143 F.3d at 520-22
(finding the plaintiffs' notice inadequate where letters did not even mention the
specific species in question). Plaintiffs' statements are sufficient to meet the notice
requirement under the ESA.
29
c.
Sections 7 and 9 of the ESA
Plaintiffs challenge the agencies' conclusions regarding the grizzly bear
under Sections 7 and 9 of the ESA. Plaintiffs contend the agencies' Section 7
determination that the Project is not likely to adversely affect the grizzly bear is
arbitrary and capricious in light of unpermitted take occurring in violation of
Section 9. Plaintiffs are wrong.
When an agency action is likely to cause a "take" of a listed species, the Fish
and Wildlife Service may issue an "incidental take statement" setting out the
predicted impact on the species, as well as the terms and conditions of the action
that will minimize take. See 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(1). Here,
it is undisputed that all agency actions must comply with an existing incidental take
statement in order to ensure compliance with Section 9 ofthe ESA. Defendants
contend those adverse effects alleged by Plaintiffs have already been analyzed and
fall within the biological opinions and incidental take statements under the Swan
Valley Grizzly Bear Conservation Agreement and Amendment 19. X47:60932.
Plaintiffs insist because the Buck Holland and Glacier Loon subunits do not meet
the numerical objective requirements of Amendment 19, unpermitted take is
occurnng.
Amendment 19 states that when the numerical access objectives are not met,
30
"harm" to grizzly bears occurs. Y8:61904. However, the incidental take statement
issued for the implementation of Amendment 19 recognized certain subunits would
fall under this standard and, as discussed above, set an extended schedule for
compliance. This extended schedule is reflected in Amendment 19's incidental
take statement, which states:
If at the end of 2018, subunits do not meet A19 or amended management
direction, or if at any time Forest actions result in net increases in road
densities or net decreases in core, as a result ofchanges on the ground when
comparted to the 2012 baseline, the amount of incidental take exempted
here would be exceeded and reinitiation of consultation would be required.
A19 Revised Sched., Y8:61905, 61908. Therefore the incidental take statement for
Amendment 19 includes the take alleged by Plaintiffs. Even though Glacier Loon
and Buck Holland subunits currently fall under the Amendment 19 numerical
access objectives, resulting in a take of grizzly bears, that take is permitted as long
as the Project does not result in net increase in road density or net decrease in core.
The Forest Service determined it would not. X20:59410. Therefore, no Section 9
violation has occurred.
In the absence of a Section 9 violation, Plaintiffs do not provide alternative
grounds for challenging the agencies' Section 7 determination. However, the
agencies' reliance on the wrong access objectives may impact their conclusion that
the Project is not likely to adversely affect the grizzly bear. Section 7 of the ESA
31
requires an agency to ensure no discretionary action "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). In an action area where listed or proposed
species or designated 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). If the Forest Service determines the
proposed action "may affect but is not likely to adversely affect" a listed species or
critical habitat, it must engage in informal consultation with the Fish and Wildlife
Service to obtain its determination with respect to the proposed action. Ifthe Fish
and Wildlife Service concurs with the Forest Service, no further consultation is
required and the process ends. Karuk Tribe, 681 F.3d at 1027.
Here, the Forest Service prepared a biological assessment in which it
determined the adverse effects to the grizzly bear are unlikely for several reasons,
including, inter alia: (1) the activities associated with the Project would only cause
short-term displacement and reductions in hiding cover and forage; (2) the
active/inactive management strategy under the Swan Valley Grizzly Bear
Conservation Agreement would reduce displacement and disturbance; (3) inactive
32
subunit guidelines would allow activities for a 30-day salvage period during the
summer and during the bear's denning period; (4) spring timing restrictions would
prevent displacement; (5) there would be no net increase in open road or total road
density; (6) no net loss of habitat security or increase in motorized access is
expected; (7) the Project is expected to decommission some existing roads, and
proposed temporary roads will be reclaimed following use; and (8) there would be
no effect to potential or known grizzly bear denning habitat. X20:59409-10. The
Fish and Wildlife Service concurred. X47:60932.
It is unclear whether this Court's determination that the quantitative
requirements of Amendment 19 apply to the Glacier Loon and Buck Holland
subunits impacts these findings. On remand, the agencies must consider this
question and, if necessary, perform the relevant analysis. Such action will enable
the Court to determine whether or not the agency's adversity determination is
arbitrary and capricious.
2.
Amendment 21
Amendment 21 is intended "to ensure that old growth habitat on the Flathead
National Forest is maintained and restored to provide for long-term viability of old
33
growth associated wildlife species."s T8a:33084. "Old growth associated species"
"includes any wildlife species that use the various attributes of old growth forests
for some or all of their ecological needs." V2:44722. Although the Project does
not cut down old growth stands, Plaintiffs contend the Project violates the Forest
Plan because it does not designate stands to meet necessary viability requirements.
This raises two issues for the Court: first, whether the viability percentage outlined
in the Forest Plan is mandatory and, second, if not, to what extent the Forest
Service is required to ensure old growth species viability.
As to the first question, the Forest Plan tasks the Forest Service to
"[m]aintain and recruit old growth forests to an amount and distribution that is
within the 75% range around the median of historical range of variability. Where
current conditions are below this amount, actively manage to recruit additional old
growth." Id. This provision falls within the "Forest Plan Goals" section of
Amendment 21. As such, it is not mandatory, but sets a goal for the Forest Service
to work toward, recognizing current conditions may not meet these standards.9 See
Ecology Ctr. v. Castaneda, 574 F.3d 652,660-61 (9th Cir. 2009) (finding language
8
"Old growth" is defined in Amendment 21 as "a community of forest vegetation
that has reached a late stage of plant succession." V2:44722.
9
Notably, the Forest Plan does not specify a time period for achievement for its
listed goals. T8a:3 3115.
34
in a Forest Plan that is merely advisory or aspirational does not give rise to a
mandatory rule).
As to the second question, Plaintiffs challenge the Forest Service's viability
determination on the grounds that anything less than the 75 percent provided for
under Amendment 21 is insufficient to ensure old growth species viability.
See V2:44725 ("The 75 percent range around the median of the historical
variability is assumed to provide an acceptable level ofhabitat."). Defendants
contend the Project meets the applicable Amendment 21 old growth standards,
which requires limiting actions to those that "maintain or restore old growth
composition and structure consistent with native disturbance and succession
regimes, or reduce risks to sustaining old growth composition and structure."
T8a:33141. Defendants argue this standard is met because no treatment in old
growth stands is proposed, existing old growth stands will continue to provide
habitat, and harvest treatments will retain vigorous, healthy, fire-resistant, and
longer-lived tree species to promote old growth. V2:44733-35; V3 :45170-71.
"[S]pecies viability may be met by estimating and preserving habitat only
where both the Forest Service's knowledge of what quality and quantity of habitat
is necessary to support the species and the Forest Service's method for measuring
the existing amount of that habitat are reasonably reliable and accurate." Or. Nat.
35
Resources Council Fund v. Goodman, 505 F.3d 884, 890 (9th Cir. 2007) (emphasis
and internal quotation marks omitted) (finding the Forest Service violated NFMA
when it failed to adequately explain how it identified suitable fisher habitat). "A
habitat disturbance does not necessarily mean that a species' viability will be
threatened." Ecology Ctr., 574 F.3d at 663.
Here, the Project's impact on old growth associated species is discussed
thoroughly in the EA, both generally in regards to wildlife and specifically in
regards to old growth habitat. See V2:44632-841 (Chapter 3 of the EA,
"Wildlife"). In regards to the fisher, the EA discusses relative importance and
required levels of canopy cover, as well as the importance of snag density and the
effect of320 acres of proposed treatment adjacent to riparian habitat. V2:44700
702. The EA also notes the fisher is difficult to monitor, but available information
indicates adequate old growth, riparian habitat will remain under the Project.
V2:44703-703. The EA also states that approximately 250-500 acres of old growth
is required for the marten, V2:44726, and the average patch size in the immediate
Project area is 77 acres, with patches ranging from 20-272 acres, V2:44726.
Similarly, the Forest Service found goshawks inhabit forests with relatively closed
forest canopies (50-90 percent), and nests in Montana are often located near older
stands, near widely-spaced trees with water and large forest openings within 0.3
36
miles of the nest, V2:44727, and the Project will impact only 92 acres of goshawk
post-fledgling habitat, V2:44733. The Forest Service also analyzed lynx and lynx
critical habitat needs in this context, X20:59432, finding over 12,000 acres of
Wilderness remain unaffected in the Project area, and a mosaic of forest stand
conditions will continue to exist, V2:44677. Having adequately discussed the
quality and quantity of both existing and necessary habitat for old growth
associated species, the Forest Service has complied with the Forest Plan and,
therefore, NFMA.
D.
Lynx
The Canada lynx is a threatened species under the ESA. 65 Fed. Reg. 16052,
16082 (Mar. 24, 2000). The Project area includes six Lynx Analysis Units
("LAUs"): Buck, Elk, Glacier, Holland, Lower Beaver, and Upper Beaver.
V2:44658-59. In the Amended Biological Assessment, the Forest Service
determined the Project was likely to adversely affect designated critical habitat for
lynx. X20:59389. The Forest Service initiated formal consultation with the Fish
and Wildlife Service under Section 7 ofthe ESA. This process culminated in the
Fish and Wildlife Service concluding the Project would not likely adversely modify
or destroy lynx critical habitat. G2:2552; X47:60948. Plaintiffs insist the Project
be enjoined because the agencies must reinitiate and complete reconsultation on the
37
Lynx Direction, the Forest Service failed to adequately discuss "recovery," and the
Forest Service failed to prepare a site-specific biological opinion for the Project.
1.
The agency does not have to engage in reconsultation.
Plaintiffs complain the agencies must reinitiate and complete reconsultation
on the Lynx Direction before allowing additional logging in lynx critical habitat.
In making this point, Plaintiffs rely on Salix v.
u.s. Forest Serv., 944 F. Supp. 2d
984, 1000 (D. Mont. 2013) and Alliance for the Wild Rockies v. Krueger, 950 F.
Supp. 2d 1196, 1200 (D. Mont. 2013). These cases found an agency cannot meet
its burden of showing an action will not jeopardize lynx or destroy or adversely
modify its critical habitat by relying solely on the Project's compliance with
standards and guidelines derived from the Lynx Direction because the Lynx
Direction did not address lynx critical habitat. However, agencies "might be able
to meet their burden by showing that the Project[] will have no adverse effects on
the primary constituent elements of lynx critical habitat, without regard to
compliance with any standards in the Lynx [Direction]." Krueger, 950 F. Supp. 2d
at 1203; Native Ecosystem Council v. Krueger, CV 13-167-M-DLC, Doc. 34 at 20
(D. Mont. June 4, 2014).
Defendants aver the agencies expressly did not rely on the Lynx Direction,
but used primary constituent elements ("PCEs") directly from the lynx critical
38
habitat rule. In a letter dated December 2,2013, and attached to the Amended
Biological Assessment prepared in this matter, the Forest Service informed the Fish
and Wildlife Service: "Additional detailed analysis was done to ensure that the
determination for lynx critical habitat did not rely on [the Lynx Direction]."
X20:59386. Rather, the agency's analysis of lynx critical habitat is based on the
four components for lynx critical habitat under the peEs, which are the physical
and biological features essential to the survival and recovery of lynx; these include:
"[b]oreal forest landscapes supporting a mosaic of differing successional forest
stages" that contain "presence of snowshoe hares and their preferred habitat
conditions" (peE 1a), appropriate snow conditions (peE 1b), denning sites (peE
1c), and "matrix habitat" providing connectivity between denning and foraging
sites (peE 1d). X20:59432. The Forest Service concluded sub-elements (b) and
(d) would not be affected by the Project, a small amount of forage habitat decrease
will result under (a), and the impact to denning under (c) would be insignificant.
X47:60943-45. As the record contains a reasonable independent basis for the
agencies' conclusions with respect to lynx critical habitat and does not rely solely
on the Lynx Direction, the agencies' determination is upheld. Reconsultation is
therefore not necessary before the Project can proceed.
2.
The agency adequately addressed lynx recovery.
39
Plaintiffs further insist the Biological Opinion fails to adequately address the
impact of the Project on lynx recovery. An agency must consider a proposed
action's impact on both recovery and survival of a species in its jeopardy analysis.
Natl. Wildlife Fedn. v. Natl. Marine Fisheries Serv., 524 F.3d 917,932 (9th Cir.
2007); Gifford Pinochet Task Force v. Us. Fish & Wildlife Serv., 378 F.3d 1059,
1069 (9th Cir. 2004). The Ninth Circuit has recognized, however, that survival and
recovery are "generally considered together in analyzing effects, and it is difficult
to draw clear-cut distinctions." Natl. Wildlife Fedn., 524 F.3d at 932 n. 11 (quoting
51 Fed. Reg. 19,934 (June 3, 1986)); Rock Creek Alliance v. Us. Fish & Wildlife
Serv., 663 F.3d 439,443 (9th Cir. 2011) (noting recovery need not be addressed in
a separate, distinct section of the biological opinion). That said, the Ninth Circuit
has cautioned "the agency may not ... ignor[e] recovery needs and focus[] entirely
on survival[.]" Nat!. Wildlife Fedn., 524 F.3d at 932 n. 11.
Here, the biological opinion includes only one reference to "recovery," and it
is in the context of the Lynx Direction. It asserts that the Lynx Direction
"promotes and conserves the habitat conditions needed to produce snowshoe hare
(lynx primary prey) densities that are adequate to sustain lynx within their home
ranges, and thus sustain lynx populations and promote recovery of Canada lynx."
X47:60941. Defendants ask the Court to look to substance over fonn, contending
40
that although the biological opinion does not use the word "recovery," it discusses
lynx recovery in the context of "conservation" and continual support of the lynx.
The biological opinion discusses "regeneration treatment" to provide "snowshoe
hare habitat in the long-term." X47:60945. The analysis further addresses the
concerns contained in the PCEs, such as deep and fluffy snow conditions and
ensuring adequate denning habitat. Id. It concludes the "LAUs are expected to
remain capable of producing adequate densities of snowshoe hares to support
continual lynx presence and would continue to serve their intended conservation
role for lynx. The physical and biological features would not be altered to an
extent that would appreciably reduce the conservation value of critical habitat for
lynx and the PCE would continue to function." Id. Although the cited portions of
the biological opinion do not mention the word "recovery," they focus on
conservation of the species. See 16 U.S.C. § 1532(3) (defining "conservation" as
"all methods and procedures which are necessary to bring an endangered species or
threatened species to the point at which measures [under the ESA] are no longer
necessary"). A fair reading of the biological opinion, coupled with the deference
due the agency, leads to the conclusion the agency adequately considered the
impact the Project could have on the habitat's value for lynx recovery.
3. The agency is not required to prepare a site-specific
biological opinion
41
The ESA's implementing regulations explain "formal consultation is
required" if"any [agency] action may affect listed species or critical habitat." 50
C.F.R. § 402.14( a). Plaintiffs contend agencies cannot abdicate their legal
obligation to prepare a site-specific biological opinion on lynx jeopardy by
referencing the programmatic biological opinion for the Lynx Direction.
Defendants insist programmatic biological opinions comply with the requirements
of § 402. 14(h) by providing the required consultation for specific categories of
agency action, partiCUlarly action that may affect a species over an entire region
over several years. Defendants argue where the adverse effects of project activities
fall entirely within the scope of previous analysis-as they claim is the case
here-the agencies have fully complied with § 402. 14(a).
Here, the Fish and Wildlife Service found "[t]he effects of the proposed
action on Canada lynx fall within the range of effects analyzed in [its] first-tier
biological opinion." X47:60933. The first-tier biological opinion in this case was
prepared for the Lynx Direction. H133:10468-522. Based on that finding, the Fish
and Wildlife Service concluded "no second-tier biological opinion is required for
this project." X47:60933. According to the agency, "[s]econd-tier biological
opinions would be issued as appropriate, where proposed actions would result in
adverse effects to lynx that were not fully analyzed in the first-tier biological
42
opinion." X47:60932. The Fish and Wildlife Service found the effects to lynx
were adequately analyzed in the first-tier opinion because:
1) the proposed site-specific project falls within the scope of the first
tier biological opinion; 2) the effects of the proposed action are
consistent with those anticipated and analyzed in the first-tier biological
opinion, regarding fuels reduction treatments in the [wildland urban
interface] WUI that result in snowshoe hare habitat degradation; and 3)
the proposed action adheres to the appropriate terms and conditions
associated with the reasonable and prudent measures identified in the
first-tier biological opinion.
X47:60933.
In Gifford, the Ninth Circuit held an agency can at least partially rely on a
programmatic biological opinion in its jeopardy analysis. 378 F.3d at 1068.
However, the court specifically noted the agency there had conducted independent
analysis of site-specific data in the form of project-specific biological opinions that
supplemented the programmatic environmental analysis. Id. at 1067-68. Here, the
record shows the Forest Service drafted an amended biological assessment
specifically targeted at lynx and lynx habitat, engaging directly with the topic of
lynx critical habitat. X47:60935-49. In doing so, neither the Forest Service nor the
Fish and Wildlife Service ignored the effects the Project might have on lynx or
lynx critical habitat. Specifically, the Fish and Wildlife Service noted site-specific
information in its letter of concurrence:
43
The proposed action will treat approximately 337 acres of stand
initiation lynx habitat using the exemptions from amendment standard
VEG S5 to thin conifers in the WUI for fuels reduction. An additional
43 acres ofmultistory lynx foraging habitat within the WUI would also
be treated as part of the fuels reduction using the exemptions from
standard VEG S6. When these 380 acres are added to the existing acres
treated on the Forest through exemptions, the total amount is well within
the six percent (103,800 acres) anticipated for the Forest and analyzed
in the first tier opinion and incidental take statement. Since 2007 to
date, the total acreage of lynx habitat treated or proposed to be treated
to date in the WUI where exemptions to the standards are applied
through Forest decisions, including the proposed action, is 4,081 acres;
also well within the 103,800 total acres anticipated for the Forest.
X47:60933. When considered in conjunction with the site-specific information and
analysis included in the amended biological assessment, Plaintiffs have failed to
show the agencies' analysis is flawed or the agency failed to consider an important
aspect of the problem. See Friends o/the Wild Swan v. Us. Forest Serv., 875 F.
Supp. 2d 1199, 1210 (D. Mont. 2012) (holding the Forest Service met is
consultation requirements under ESA § 7(a)(2) where, in addition to relying on the
Lynx Direction Biological Opinion, it drafted a biological assessment and
thoroughly considered the project's impact on lynx and lynx critical habitat); cf
Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir. 1994)
(holding under NEPA, "[a] comprehensive programmatic impact statement
generally obviates the need for a subsequent site-specific or project-specific impact
statement, unless new and significant environmental impacts arise that were not
44
previously considered").
E.
The Forest Service's decision not to prepare an EIS was not
arbitrary or capricious.
NEPA mandates federal agencies prepare a detailed EIS for "major Federal
actions significantly affecting the quality of the human environment." 42 U.S.C. §
4332(2)(c). As a preliminary step, an agency may prepare an EA to decide whether
the environmental impact of a proposed action is significant enough to warrant
preparation of an EIS. 40 C.F.R. § 1508.9. If, in view ofthe EA, the agency
concludes the project will have a significant effect on the environment, the agency
must prepare an EIS. 40 C.F.R. § 1501.4. If, on the other hand, the agency makes
a finding of no significant impact and does not prepare an EIS, it must "supply a
convincing statement of reasons to explain why a project's impacts are
insignificant." Blue Mts. Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212
(9th Cir. 1998) (internal quotation marks omitted). To prevail on a claim that the
Forest Service violated its statutory duty to prepare an EIS, plaintiffs need not
show significant effects will in fact occur. Save the Yaak Comm., 840 F.2d at 717.
Plaintiffs need only raise substantial questions whether a project may have a
significant effect on the environment. ld.
Whether there may be a significant effect on the environment requires
45
consideration of two broad factors: context and intensity. Ctr. for Biological
Diversity v. Natl. Hwy. Traffic Safety Admin., 538 F.3d 1172, 1220 (9th Cir. 2008);
40 C.F .R. § 1508.27. "Context" refers to the setting in which the proposed action
takes place, 40 C.F.R. § 1509.27(a), which in this case is the Flathead National
Forest. "Intensity ... refers to the severity ofthe impact." Id. at § 1509.27(b). In
considering the severity of the potential environmental impact, a reviewing agency
may consider up to ten factors that help inform the "significance" of a project, such
as the unique characteristics of the geographic area, including proximity to an
ecologically sensitive area; the degree to which the effects on the quality ofthe
human environment are likely to be highly controversial; whether the action bears
some relationship to other actions with individually insignificant but cumulatively
significant impacts; the level of uncertainty ofthe risk and to what degree it
involves unique or unknown risks; the degree to which the action may adversely
affect an endangered or threatened species or its habitat; and whether the action
threatens violation of an environmental law. Id. at § 1508.27(b)(3), (4), (5), (7),
(9), and (10). The Ninth Circuit has held the presence of one of these factors alone
may be sufficient to require preparation of an EIS in appropriate circumstances.
Ocean Advocates v. Us. Army Corps ofEngrs., 402 F.3d 846, 865 (9th Cir. 2005).
An agency's decision not to prepare an EIS is governed by an arbitrary and
46
capricious standard, which "requires [the Court] to ensure that an agency has taken
the requisite 'hard look' at the environmental consequences of its proposed action,
carefully reviewing the record to ascertain whether the agency decision is founded
on a reasoned evaluation of the relevant factors." Greenpeace Action v. Franklin,
14 F.3d 1324, 1332 (9th Cir. 1992) (citation and internal quotation marks omitted).
The Ninth Circuit has repeatedly held the failure to consider crucial factors, the
consideration of which are essential to a truly informed decision as to whether or
not to prepare an E1S, is determinative. Compare Found. for N. Am. Wild Sheep v.
u.s. Dept. ofAgr., 681 F.2d 1172, 1178 (9th Cir. 1982) (holding the agency's
decision not to prepare an E1S was unreasonable because it did not consider the
amount of traffic that would occur on the newly-opened road or how that traffic
would affect wild sheep) with Greenpeace Action, 14 F.3d at 1333 (holding the
agency's decision not to prepare an E1S was not arbitrary and capricious because it
considered the crucial factors surrounding the effect of pollock depletions on the
Steller sea lion).10
Plaintiffs contend the Forest Service abused its discretion by not preparing
an E1S for the Project. Specifically, Plaintiffs argue the Project will adversely
10
As made clear in Greenpeace Action, the "reasonableness" standard applied in
Wild Sheep is no longer the standard for reviewing an agency's determination not to prepare an
EIS. Greenpeace Action, 14 F.3d at 1331.
47
-----------~-~.~--
affect lynx and lynx critical habitat, includes wetlands that are ecologically critical
for the ESA-listed water howellia, and will have potentially significant cumulative
effects. In contrast, Defendants assert the Forest Service's finding of no significant
impact was not arbitrary or capricious because it is based on information provided
by its scientific experts and the EA considered cumulative effects of other actions.
Ultimately, the record in this case reveals the Forest Service considered the crucial
factors here, taking the requisite "hard look" at the environmental consequences of
the proposed action. Therefore, its decision not to prepare an EIS is not arbitrary
and capricious.
1.
Lynx and Lynx Critical Habitat
In the Amended Biological Assessment, the Forest Service reached a "may
affect -likely to adversely affect" conclusion for Canada lynx. X20:59430. This
was based on the fact that the Project "would decrease snowshoe hare habitat in
designated lynx habitat and in Canada lynx Critical Habitat by 380 acres."
X20:59438. The Forest Service found, however, the effects ofthe Project would
not be significant under NEPA because "[d]isturbance will be short term" and
"[p10tential disturbance of lynx will be mitigated by project Design Features to
reduce disturbance and displacement of grizzly bears." V3:77947. Similarly, a
"may affect, likely to adversely affect" determination was made for lynx critical
48
habitat. V3:44948. The Forest Service found this did not amount to a significant
effect due to the "small scale" and "resulting low severity of effects." Id Standing
alone, these findings may suggest the need for an EIS. Ocean Advocates, 402 F.3d
at 865. However, the Ninth Circuit has declined to interpret NEPA as "requiring
the preparation of an EIS any time that a federal agency discloses adverse impacts
on wildlife species or their habitat." Native Ecosystems Council v. U.S. Forest
Serv., 428 F.3d 1233, 1240 (9th Cir. 2005).
The Forest Service adequately considered those factors crucial to lynx and
lynx critical habitat. The Amended Biological Assessment and the EA both state:
"There would be no significant large-scale (across the 6 LAUs) negative
cumulative effects on Canada lynx or Canada lynx critical habitat as a result of
implementing the ... Project" because the proposed activities comply with the
standards and guidelines of the Lynx Direction, extensive roadless and wilderness
habitat remains, and a mosaic of forest stand conditions and successional stages
would continue to exist. V2:44677; X20:49423. In summary the Amended
Biological Assessment found:
Within lynx Critical Habitat in the Glacier Loon area, there would be a
decrease of approximately 380 acres that currently provide conditions
for PCE1a (337 acres of stand initiation and 43 acres of multistory) ..
. . PCE1a would be decreased by approximately 3% in the Glacier LAU,
0.2% in the Elk LAU, and 0.1% in the Lower Beaver LAU. The total
49
decrease in lynx forage would represent approximately 0.009% of
estimating existing lynx forage (PCEla) in Critical Habitat within the
combined area of the project LAUs.
X20:59434. The Assessment further states that the 87 acres of denning habitat that
would be affected "make up about 0.003% of the available denning habitat
(PCElc) in the 6 project LAUs and less than 0.000003% of the Critical Habitat
area in Unit 3." X20:59435.
2.
Water Howellia
Plaintiffs insist the Project includes wetlands that are ecologically critical to
water howellia. (Doc. 22 at 34 (citing V2:445 13).) The portion of the record cited
by Plaintiffs does not support this assertion. Although the record indicates there
are wetlands and ponds with water howellia in the Project area, V2:445l5, it does
not state these wetlands are "ecologically critical" to howellia populations. In their
reply, Plaintiffs seem to step back from this argument and assert that because the
EA clearly states effects to a single pond could have cumulative effects populationwide, V2:445l3, an EIS is necessary. Although mitigation measures may not be
used to bolster a finding of "no effect"-as is discussed above-proposed
mitigation measures may be considered in determining whether the preparation of
an EIS is necessary. Friends o/Endangered Species, Inc. v. Jantzen, 760 F.2d 976,
987 (9th Cir. 1985). The Forest Service found through mitigation measures, such
50
as the use of a 300-foot buffer, water howellia would be protected from disturbing
activity. V2:44520, J3:16431; n:16391. The Forest Service also considered the
location of the ponds, where existing roads lay, and how best management
practices could be used to prevent further sedimentation and any other negative
effects to water howellia. V2:44521, n:16393.
Plaintiffs also cite the concerns raised by local county officials regarding the
water howellia. E5 :2078. A substantial public controversy exists as to the
conclusions of an EA if a wide range of knowledgeable individuals are highly
critical of it and its conclusions. Greenpeace Action, 14 F.3d at 1334. The
commentary highlighted by Plaintiffs does not rise to this level. Plaintiffs fail to
show what crucial factors, if any, were overlooked.
3.
Cumulative Effects
Plaintiffs further challenge the cumulative effects analysis under the EA,
contending it fails to address numerous commercial logging projects in the area.
Plaintiffs specifically reference five projects: Fredwood, Two Bear, Last Gap,
Barber Chair, and Beaver Highway. Fredwood was specifically mentioned in the
EA. V2:44424. Two Bear and Last Gasp were considered in a Supplemental
Information Report ("SIR"). X46:60914-16; X20:59407, 59422. Plaintiffs
contend the Barber Chair and Beaver Highway projects were never analyzed.
51
Contrary to Plaintiffs' claim, the Forest Service was permitted to analyze the
cumulative effects of the three previously-implemented projects by The Nature
Conservancy on the basis ofthe aggregate effects they manifested in the current
condition of the land. League ofWilderness Defenders v. Allen, 615 F.3d 1122,
1136 (9th Cir. 2010). The EA discusses these past timber projects in the
cumulative effects section, V2:44654, 44664, 44674, and cross references the
cumulative effects worksheets addressing past private and Legacy Lands harvests,
V2:44637; U14; U16. The EA also specifically addresses the impacts to certain
species across unique geographic areas used to analyze those species, such as
LAUs and Bear Management Subunits. See Friends ofthe Wild Swan v. Weber,
Slip Copy No. 13-35817 at 12-13 (9th Cir. Sept. 24,2014) (affirming the denial of
a preliminary injunction on the grounds that the plaintiff failed to demonstrate that
the Forest Service acted arbitrarily and capriciously in delineating the geographic
boundaries of its cumulative analysis).
F.
Plaintiffs voluntarily withdraw and waive their claim that the
Project did not sufficiently analyze harm to elk.
Plaintiffs have voluntarily withdrawn and waived their claim regarding the
analysis of elk under the Project. (Doc. 33 at 48.) Summary judgment is granted in
favor of Defendants as to this issue.
52
III.
Plaintiffs' Motion to Supplement
Plaintiffs move to have the administrative record in this matter supplemented
with: (1) a complete copy ofthe Agreed Operating Procedures, including the Fiber
Supply Agreement; (2) the Forest Service's official Wolverine Guidance; and (3)
two peer-reviewed articles addressing fuel-reduction. Consideration ofthese
materials is not necessary to reach a decision as to the parties' motions for
summary judgment.
"Generally, judicial review of an agency decision is limited to the
administrative record on which the agency based the challenged decision." Fence
Creek Cattle Co. v. US. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010). The
Ninth Circuit has outlined four narrow circumstances under which expansion of the
administrative record may be allowed: "(1) supplementation is necessary to
determine if the agency has considered all factors and explained its decision; (2)
the agency relied on documents not in the record; (3) supplementation is needed to
explain technical terms or complex subjects; or (4) plaintiffs have shown bad faith
on the part of the agency." Id. (citing Lands Council v. Powell, 393 F.3d 1019,
1030 (9th Cir. 2005». "These limited exceptions operate to identify and plug holes
in the administrative record," Lands Council, 395 F.3d at 1030, so the plaintiff has
a heavy burden to show "that the additional materials sought are necessary to
53
adequately review the [agency]' s decision," Creek Cattle Co., 602 F.3d at 1131.
In regards to the Wolverine Guidance and the two peer-reviewed articles, the
Forest Service did not rely on them in reaching its decision, and Plaintiffs have
failed to show any of the four grounds mentioned above apply. Therefore,
including them in the record is inappropriate. See San Luis & Delta-Mendota
Water Auth. v. Jewell, 747 F.3d 581,603 (9th Cir. 2014) ("[P]ost-decision
information may not be advanced as a new rationalization either for sustaining or
attacking an agency's decision." (internal quotation marks and alterations
omitted)). This leaves only the Fiber Supply Agreement.
As the Fiber Supply Agreement is between The Nature Conservancy and
Plum Creek, Plaintiffs have failed to show how its contents are necessary to
adequately review the Forest Service's decision.
CONCLUSION
Based on the foregoing, IT IS ORDERED that the motions for summary
judgment (Docs. 20 and 28) are GRANTED IN PART and DENIED IN PART.
Summary judgment is granted in favor of Plaintiffs on their claims: (1) the
promulgation of the Agreed Operating Procedures and site-specific logging
projects require analysis under NEPA and the ESA; (2) the agency's "no effect"
determination for bull trout and water howellia is arbitrary and capricious; (3) the
54
agencies violated the ESA when they failed to follow the necessary procedures
after reaching a "may affect" conclusion for the wolverine; and (4) the numerical
objectives under Amendment 19 apply to predominantly National Forest System
lands even if they are subject to reserved logging rights. Summary judgment is
granted in favor of Defendants on all of Plaintiffs , other claims.
The matter is remanded to the agencies to perform the necessary analysis and
follow the necessary procedures under the ESA for water howellia, bull trout, and
wolverine and to reassess its Section 7 analysis regarding the grizzly bear in light
of the application of the correct access objective under Amendment 19.
IT IS FURTHER ORDERED that Defendants are enjoined from
implementing the Glacier Project while the proceedings required on remand are
pending. Defendants are also enjoined from proceeding under the Agreed
Operating Procedures until the necessary analysis has been performed.
IT IS FURTHER ORDERED that Plaintiffs' motion to supplement the
record (Doc. 14) is DENIED.
The Clerk of Court is directed to enter judgment and close this case.
;-/
Dated thisj~ day of September,
.
55
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