Alliance for the Wild Rockies v. Austin et al
ORDER finding as moot 41 Motion for Leave to File; denying 23 Motion for Summary Judgment; granting 30 Motion for Summary Judgment. Signed by Chief Judge Dana L. Christensen on 10/28/2014. (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
ALLIANCE FOR THE WILD ROCKIES,
DEBORAH AUSTIN, FAYE KRUEGER,
UNITED STATES FOREST SERVICE,
and UNITED STATES FISH AND
Before the Court are the parties cross-motions for summary judgment. For
the reasons explained below, the Court grants Defendants’ motion and denies
Plaintiff challenges Defendants’ approval of the Rennic Stark Project (“the
Project”) under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §
4331, et seq., the National Forest Management Act (“NFMA”), 16 U.S.C. § 1604,
et seq., the Endangered Species Act (“ESA”), 16 U.S.C. § 1531, et seq., and the
Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq. Plaintiff seeks
declaratory and injunctive relief.
The Project is located on the Ninemile Ranger District of the Lolo National
Forest, approximately thirty miles west of Missoula, Montana. The approximately
36,000-acre Project area straddles a divide between the Ninemile Creek and Clark
Fork River valleys, and ranges in elevation from approximately 3,200 feet near the
Clark Fork River to over 7,000 feet atop Stark Mountain. Much of the forested
vegetation within the Project area displays a uniformity consistent with post-largescale, stand-replacing fire conditions; indeed, much of the Project area burned in
the early 1900's. FS 000009.1 The southern end of the Project area borders
The Project area contains a number of power and communication
infrastructure components, including the Bonneville Power Administration
Garrison-Taft 500-KV transmission line, Missoula County’s Alberton Beacon
communication site southwest of Ellis Mountain, and the Forest Service’s
communication site northwest of Ellis Mountain. FS 000009. Nearly 20,000 acres
within the Project area are considered wildland-urban interface, and both the
Missoula and Mineral County Community Wildland Fire Protection Plans identify
the Project area as susceptible to wildfire and in need of hazardous fuels reduction
activities. FS 000010.
1. Citations to the administrative record will reference the six-digit Bates stamp.
The Project proposes a host of management measures in part designed to
address these conditions, including: commercial harvesting on 1,976 acres; noncommercial young-stand thinning followed by burning on 1,975 acres; ecosystem
maintenance burning on 5,250 acres; decommissioning 28.6 miles of road and
storing another 22.4 miles; building approximately one mile of temporary road;
performing maintenance and reconstruction activities on 34.5 miles of road;
replacing three dysfunctional road culverts; completing one stream channel
restoration project; and, reconstructing a public access trailhead. FS 000017. The
United States Forest Service’s (“Forest Service”) intention with the Project is to
“restore functioning ecosystems by enhancing natural ecological processes, reestablish fire as a natural process on the landscape, improve terrestrial habitat and
connectivity, improve aquatic habitat and connectivity, [and] integrate restoration
with socio-economic well-being.” FS 000013. Defendants cite the need to
manage Project area conditions which “predispose [forest] stands to standreplacing fire events and insect and disease epidemics” as further justification for
the Project. (Doc. 32 at 5.)
The Forest Service published the Environmental Assessment (“EA”) for the
Project in November 2012. FS 000001. The EA discussed the likely effects of the
Project on a number of wildlife species, including the ESA-listed threatened
Canada lynx, the Forest Service-sensitive fisher, the Forest Service-sensitive
North American wolverine,2 goshawk, and westslope cutthroat trout. FS 000084000095, 000099-000106, 000120-000124, 000131-000140. The analysis area is
not located in designated critical lynx habitat, though the Project area in part
consists of occupied habitat and contains a portion of the Divide Lynx Analysis
Unit (“Divide LAU”). Official records of Canada lynx occurrences have not been
reported in the analysis area in over a decade. FS 040464, 000084. Prior to
issuing the EA, the Forest Service determined that the Project “may affect, but is
not likely to adversely affect” the Canada lynx or any lynx habitat in an Amended
Biological Assessment dated October 1, 2012. FS 003782, 003807.
On March 22, 2013, the Forest Service signed and issued the Decision
Notice adopting Alternative 2 from the EA, as well as a Finding of No Significant
Impact pursuant to 40 C.F.R. § 1508.13. FS 000251, 000330. Plaintiff timely
appealed the Forest Service’s decision on May 9, 2013. FS 044970. The Forest
Service subsequently denied Plaintiff’s appeal on June 24, 2013. FS 049907049908. Plaintiff filed its complaint in this case on August 13, 2013, and moved
for summary judgment on February 14, 2014. Defendants filed their cross-motion
2. As of publication of the EA, the United States Fish & Wildlife Service (“Fish & Wildlife
Service”) had yet to propose listing the wolverine under the ESA. See Section II infra.
for summary judgment on March 14, 2014. The cross-motions were fully briefed
as of May 1, 2014.
SUMMARY JUDGMENT STANDARD
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.
STANDARDS OF REVIEW
Judicial Review Under the APA.
Neither the ESA, NEPA, nor the NFMA contain independent provisions
governing judicial review of agency action; the Court’s review in this case
therefore proceeds via the APA. City of Sausalito v. O’Neill, 386 F.3d 1186,
1205-1206 (9th Cir. 2004) (citations omitted) (as to ESA and NEPA); Neighbors
of Cuddy Mt. v. Alexander, 303 F.3d 1059, 1065 (9th Cir. 2002) (as to NFMA).
Pursuant to the APA, the Court may “hold unlawful and set aside agency action,
findings, and conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
“Review under the arbitrary and capricious standard is narrow, and [the
Court should] not substitute [its] judgment for that of the agency” whose decision
is under review. Earth Is. Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1013 (9th Cir.
2012) (citations and internal quotation marks omitted). “An agency’s decision can
be set aside only if the agency relied on factors Congress did not intend it to
consider, entirely failed to consider an important aspect of the problem, or offered
an explanation that runs counter to the evidence before the agency or is so
implausible that it could not be ascribed to a difference in view or the product of
agency expertise.” Id. (citations and internal quotation marks omitted).
Statutory Requirements Under NEPA, NFMA, and ESA.
NEPA requires federal agencies to prepare detailed environmental impact
statements for actions that may significantly affect the environment. 42 U.S.C. §
4332(2)(C). NEPA does not, however, “mandat[e] that agencies achieve particular
substantive environmental results.” Marsh v. Or. Nat. Resources Council, 490
U.S. 360, 371 (1989). Instead, NEPA simply “ensures that the agency, in reaching
its decision, will have available, and will carefully consider, detailed information
concerning significant environmental impacts; it also guarantees that the relevant
information will be made available to the larger audience that may also play a role
in both the decisionmaking process and the implementation of that decision.”
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Notably,
“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. at 305-351 (“NEPA
merely prohibits uninformed - rather than unwise - agency action”).
An EIS must provide a “full and fair discussion of significant environmental
impacts,” and inform “decisionmakers and the public of the reasonable alternatives
which would avoid or minimize adverse impacts or enhance the quality of the
human environment.” 40 C.F.R. § 1502.1. Under NEPA, the Court must “simply
 ensure that the Forest Service made no ‘clear error of judgment’ that would
render its action ‘arbitrary and capricious.’” Lands Council v. McNair, 537 F.3d
981, 991 (9th Cir. 2008), overruled in part on other grounds by Winter v. Natural
Resource Defense Council, Inc., 555 U.S. 7 (2008).
An EA generally precedes an EIS. An EA is a “concise public document . . .
that serves to: (1) [b]riefly provide sufficient evidence and analysis for
determining whether to prepare an environmental impact statement or a finding of
no significant impact; (2) [a]id an agency's compliance with the Act when no
environmental impact statement is necessary, and (3) [f]acilitate preparation of a
statement when one is necessary.” 40 C.F.R. § 1508.9(a). An EA “[s]hall include
brief discussions of the need for the proposal, of [project] alternatives . . . , of the
environmental impacts of the proposed action and alternatives, and a listing of
agencies and persons consulted. Id § 1508.9(b).
The NFMA mandates that the Forest Service “develop, maintain, and, as
appropriate, revise land and resource management plans for units of the National
Forest System, coordinated with the land and resource management planning
processes of State and local governments and other Federal agencies.” 16 U.S.C.
§ 1604(a). Land and resource management plans, commonly referred to as forest
plans, must “provide for multiple use and sustained yield of the products and
services obtained” from individual forest units, and must “include coordination of
outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.”
Id. at § 1604(e)(1). Forest plans must also “provide for diversity of plant and
animal communities based on the suitability and capability of the specific land
area in order to meet overall multiple-use objectives.” Id. at § 1604(g)(3)(B). All
projects planned within a forest unit must be consistent with the forest plan as well
as any regulations in effect at the time of the decision. Native Ecosystems Council
v. U.S. Forest Serv., 428 F.3d 1233, 1249 (9th Cir. 2005) (citing 16 U.S.C.
Finally, Section 7 of the ESA requires an agency to ensure that no
discretionary action will “jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse modification of
[critical] habitat of such species.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.12(a).
In evaluating compliance with the no-jeopardy requirement, an “agency shall use
the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2). “Only
after the [agency] complies with § 7(a)(2) can any activity that may affect the
protected [species] go forward.” Pac. Rivers Council v. Thomas, 30 F.3d 1050,
1055–57 (9th Cir. 1994).
The Forest Service’s first step in complying with Section 7 is to obtain from
the Fish & Wildlife Service “a list of any listed or proposed species or designated
or proposed critical habitat that may be present in the action area.” 16 U.S.C. §
1536(c)(1); 50 C.F.R. § 402.12(c)–(d) (emphasis added). If the Fish & Wildlife
Service advises that a listed species or critical habitat may be present, the Forest
Service must complete a biological assessment to determine if the proposed action
“may affect” or is “likely to adversely affect” the listed species. 16 U.S.C. §
1536(c)(1); 50 C.F.R. §§ 402.12 (f), 402.14(a), (b)(1); Forest Guardians v.
Johanns, 450 F.3d 455, 457 (9th Cir. 2006). Once the biological assessment is
completed, it must be shared with the Fish & Wildlife Service. 50 C.F.R. §
402.12(j). “If [the Fish & Wildlife Service] advises that no listed species or
critical habitat may be present, the Federal agency need not prepare a biological
assessment and further consultation is not required.” 50 C.F.R. § 402.12(d).
A determination by the Forest Service in a biological assessment that an
action “may affect” a listed species or critical habitat gives rise to a consultation
requirement under section 7 of the ESA. Karuk Tribe of Cal. v. U.S. Forest Serv.,
681 F.3d 1006, 1027 (9th Cir. 2012). Generally, “the minimum threshold for an
agency action to trigger consultation with the Wildlife Service is low.” W.
Watersheds Project v. Kraayenbrink, 632 F.3d 442, 496 (9th Cir. 2010). “[A]ny
possible effect, whether beneficial, benign, adverse, or of an undetermined
character, triggers the formal consultation requirement.” Id. (citing 51 Fed. Reg.
19926, 19949 (June 3, 1986); Cal. ex rel. Lockyer v. U.S. Dept. of Agric., 575 F.3d
999, 1018–19 (9th Cir. 2009)).
There are two forms of consultation: formal and informal. Karuk Tribe of
Cal., 681 F.3d at 1027. Formal consultation is necessary when the Forest Service
has determined that an action is “likely to adversely affect” a listed species. Id.
However, formal consultation is not required if: 1) the Forest Service finds, either
in its biological assessment or through informal consultation, that while a project
“may affect” a listed species, the species is “not likely to be adversely affected”
and 2) the Wildlife Service concurs in writing. 50 C.F.R. §§ 402.12(j)–(k),
Section 9 of the ESA prohibits “take” of any listed species. 16 U.S.C. §
1538(a)(1)(B). “Take” includes “harassment” of a listed species by means of “an
intentional or negligent act or omission which creates the likelihood of injury to
wildlife by annoying it to such an extent as to significantly disrupt normal
behavior patterns.” 16 U.S.C. § 1532(19); 50 C.F.R. § 17.3. If an agency action is
likely to cause take but not jeopardize the species, the Fish & Wildlife Service
may issue an incidental take statement, which establishes the expected impact to
the species, reasonable and prudent measures necessary to minimize take, and
terms and conditions for implementing those measures. 16 U.S.C. § 1536(b)(4);
50 C.F.R. 401.12(i). If an agency complies with the terms and conditions of an
incidental take statement, it is exempt from ESA section 9 liability. 50 C.F.R.
The parties frame their dispute in terms of the Project’s effects, or lack
thereof, on the Canada lynx, the North American wolverine, sensitive and oldgrowth-dependent species (fisher and goshawk), and westslope cutthroat trout.
The Court will address the parties’ claims in the same manner, and will analyze
each species in turn.
Plaintiff alleges four deficiencies in the Forest Service’s analysis of the
Project’s impacts on the Canada lynx: (1) erroneous calculation of potential lynx
habitat in an unsuitable condition prior to Project implementation, (2) use of
inappropriate mapping methodologies in identifying lynx habitat likely to be
affected by the Project, (3) under-reporting of the Project’s likely effect on lynx
habitat connectivity, and (4) failure to ensure that Project implementation does not
jeopardize the lynx under the ESA.
Plaintiff’s lynx-related claims derive in large part from the Forest Service’s
implementation of the Norther Rockies Lynx Management Direction (“NRLMD”)
in 2007. The Fish & Wildlife Service listed the Canada lynx as a threatened
species under the ESA in 2000, citing a lack of management standards in forest
plans as a primary threat to lynx viability. FS 040052. The NRLMD amended a
number of national forest plans to provide the needed standards, including the
Lolo National Forest Plan governing the Project area. FS 040660. The NRLMD
contains standards related to habitat connectivity, vegetation management
projects, livestock grazing management, human use projects, projects proposed
within habitat linkage areas, and monitoring. FS 040660-040668.
Existing unsuitable habitat in the Divide LAU.
Plaintiff claims that the Forest Service, by essentially adopting an
unsupported definition of snowshoe hare habitat and consequently miscalculating
the amount of currently-unsuitable habitat within the Divide LAU, failed to
comply with the Forest Plan as amended by the NRLMD. Defendants contend that
Plaintiff fails to recognize the flexibility inherent in the NRLMD’s habitat
definitions and tree stand phase descriptions. The facts favor Defendants on this
There are two different vegetation management standards at issue in this
case. Both of these standards are found in the NRLMD. The first standard, VEG
S1, provides that “[i]f more than 30 percent of the lynx habitat in an LAU is
currently in a stand initiation structural stage that does not yet provide winter
snowshoe hare habitat, no additional habitat may be regenerated by vegetation
management projects.” FS 040662 (emphasis added). The second standard, VEG
S2, provides that “timber management projects shall not regenerate more than 15
percent of lynx habitat on [forest] lands within an LAU in a ten-year period.” Id.
Taken together, the provisions are designed to govern the rate of managementinduced change.
Both standards rely on a number of defined terms. The NRLMD defines
“stand initiation structural stage” as follows:
The stand initiation stage generally develops after a
stand-replacing disturbance by fire or regeneration
timber harvest. A new single-story layer of shrubs, tree
seedlings, and saplings establish and develop,
reoccupying the site. Trees that need full sun are likely
to dominate these even-aged stands.
FS 040673. Projects which include “vegetation management” components
“change the composition and structure of vegetation to meet specific objectives,
using such means as prescribed fire or timber harvest.” FS 040674.
“Regeneration” under the NRLMD generally refers to the creation of “an entire
new age class.” FS 040673. Finally, “winter snowshoe hare habitat” refers to
“places where young trees and shrubs grow densely – thousands of woody stems
per acre – and tall enough to protrude above the snow during winter, so snowshoe
hare can browse on the bark and small twigs.” FS 040674. Such “habitat
develops primarily in the stand initiation, understory reinitiation and old forest
multistoried structural stages.” Id.
Figure 3-2 in the NRLMD’s Final Environmental Impact Statement sheds
considerable light on the above standards and definitions. Forested swaths in the
“stand initiation” or “young regenerating forest” structural stages are “not used [by
lynx] in the winter for about the first ten to 30 years after disturbance because the
trees and shrubs are not tall enough to protrude above the snow,” though they
“may provide denning habitat.” FS 040210. However, such stands could provide
“winter snowshoe hare habitat after about ten to 30 years, if trees are dense
enough and tall enough to protrude above the snowline in places that get deep
snow.” Id. Thus, coarse-scale identification of stands in the “stand initiation” or
“young regenerating forest” structural stages does not, on its own, paint a
complete picture of those stands’ suitability as lynx habitat – some level of on-theground observation appears necessary in order to make an informed suitability
The EA for the Project identified 1,210 acres of forested land in the stand
initiation (summer foraging habitat - 16 to 29 years) stage, and 2,341 acres of land
in the stand initiation (winter foraging habitat - 30 to 45 years) stage, for a total of
3,551 acres in some form of stand initiation growth phase. FS 000087. According
to Forest Service mapping, the Divide LAU contains a total of 15,086 acres of
potential lynx habitat, which means that approximately 23.5% of potential habitat
in the LAU is in a stand initiation structural stage. Id. The EA further indicates
that approximately 6.5% of the Divide LAU, or 992 acres, is temporarily
unsuitable as habitat due to past fire and harvest activities. Id. In total, without
qualifying the nature of those units and stands in the stand initiation structural
stage, the LAU appears to be at the 30% threshold contemplated in the NRLMD’s
VEG S1 standard.
Again, however, this figure alone presents an incomplete picture. The
Forest Service performed what appear to be extensive on-the-ground surveys of
the units and stands in the Project area proposed for treatment. FS 007928-7942,
008490-008494. In line with the NRLMD, which expressly provides that, where
conditions are right, forests in the stand initiation structural stage can serve as
winter and summer hare foraging habitat, the Forest Service determined that many
of the units and stands in the Project area identified as being in that stage had
developed to the extent they represent suitable habitat. FS 000087, 000089000090. Thus, the only unsuitable habitat in the Divide LAU, identified in the EA
as between zero and fifteen years out from a stand replacing event, constitutes
6.5% of the total lynx habitat in the LAU, not 30% as suggested by Plaintiff. The
Project itself will not push the Divide LAU past the thresholds established by the
NRLMD. Nothing in the record suggests an erroneous calculation or analysis of
this figure, and nothing suggests a violation of the VEG S1 or VEG S2 standards.
The Forest Service neither made a “clear error of judgment” in violation of NEPA,
Lands Council, 537 F.3d at 991, nor failed to conform the project to the Lolo
National Forest Plan, as amended by the NRLMD, per the NFMA.
Lynx habitat mapping protocol.
Plaintiff alleges that, because the Forest Service limited its designation and
mapping of lynx habitat to areas consisting exclusively of “mature multi-story and
stand initiation, presence of wet spruce/fir, exclusive of Grand-fir and
cedar/hemlock stands, and at altitudes above 5,500 feet,” the EA consequently
underestimated the amount of habitat likely to be affected by the Project. (Doc. 27
at 10-11.) Defendants argue that, while the factors and habitat types Plaintiff
references were part of the overall designation scheme, the ultimate identification
of suitable habitat proceeded from a broader set of criteria and, consequently,
satisfies the NRLMD. The record supports Defendants’ characterization of the
Forest Service’s habitat mapping.
The Lolo National Forest completed its most recent lynx habitat mapping
update in 2010, and summarized its methodology in the Updated Mid-Level
Habitat Classification and Mapping Criteria for Canada Lynx (“Mapping
Criteria”). FS 40899-40912. Mapping proceeded in two steps. First, the Forest
Service “identif[ied] the combination of biophysical and ecological attributes that
comprise potential lynx habitat based on research at known lynx locations.” FS
040899. The Forest Service relied in part on the Canada Lynx Conservation
Assessment and Strategy (“LCAS”), cited heavily in the NRLMD, and on Figure
3-2 from the NRLMD itself, as the basis for determining those attributes. The two
documents’ descriptions of lynx habitat generally match word-for-word:
Lynx habitat occurs in mesic coniferous forest that
experience cold, snowy winters and provide a prey base
of snowshoe hare. In the northern Rockies, lynx habitat
generally occurs between 3,500 and 8,000 feet of
elevation, and primarily consists of lodgepole pine,
subalpine fir, and Engelmann spruce. It may consist of
cedar-hemlock in extreme northern Idaho, northeastern
Washington and northwestern Montana, or of
Douglas-fir on moist sites at higher elevations in central
Idaho. It may also consist of cool, moist Douglas-fir,
grand fir, western larch and aspen when interspersed in
subalpine forests. Dry forests do not provide lynx
FS 029538, 040671. The Forest Service tailored this definition in the Mapping
Criteria to suit conditions on the west side of the Lolo National Forest, where “the
climate . . . has a warmer maritime influence” and “south aspects between 4500
and 5200 feet tend to be drier . . . , with less snow persistence, and cedar/hemlock
persists.” FS 040900. The Forest Service further tailored the definition by
excluding from the mapping algorithm “all dry forest habitat types,” grand fir and
cedar/hemlock habitat types due to their “occurrence on warm slopes at lower
elevations that do not appear to provide the site potential to grow suitable lynx
habitat,” and Douglas fir unless located on a northerly aspect. FS 040901. This
definition – applicable to the west side of the Lolo National Forest, according to
the Mapping Criteria – is consistent with the general definition of lynx habitat in
the NRLMD and the LCAS, and comports with the Forest Service’s own on-theground observations of this area of the forest. See e.g. FS 007928-7942, 008490008494, 040901.
The second step of the mapping process focused on forest successional
stages. The Forest Service again relied on Figure 3-2 of the NRLMD in
determining which stages constitute lynx habitat. For example, the Forest Service
mapped stands in the stem exclusion stage, which are generally considered
unsuitable lynx habitat, by developing a stem exclusion map layer, then removing
stands and forest areas from the layer if certain management or fire activities took
place within those areas within a certain time frame. First, the Forest Service
“assumed that all [map] polygons with a [tree type] plurality of pure lodgepole
pine (PICO) or western larch (LAOC) and a tree size of greater than or equal to 5
inches diameter at breast height (dbh) and tree canopy greater than or equal to
40%” represented stands in the stem exclusion phase. FS 040905. Next, because
unsuitable stem exclusion “stands are generally 45 to 100 years in age,” the Forest
Service removed from the map layer any stands/map polygons upon which
“regeneration harvest activit[ies]” had taken place in the last 45 years. Id. The
Forest Service also removed any stands/map polygons in which a fire event took
place in the last 35 years, similarly theorizing that such stands would not meet the
age criteria for stands in the stem exclusion stage. Id. Similar map layer
development methodologies guided the Forest Service’s identification of areas of
the Lolo National Forest in the stand initiation, mature multi-story, and
“intermediate general foraging” stages. FS 040906-040908.
It is clear, consequently, that Plaintiff’s characterization of the Forest
Service’s mapping process as limited and in violation of the NRLMD’s VEG S2,
VEG S5, and VEG S6 standards is erroneous. The Forest Service relied on
detailed mapping protocols based specifically on the definitions and habitat types
contained in the NRLMD and the LCAS. The Forest Service then verified these
findings with on-the-ground field examinations. Where the Forest Service tailored
its geospatial definition of lynx habitat, it did so based on conditions in specific
areas of the Lolo National Forest, as prompted by the LCAS. FS 029538
(describing different lynx habitat compositions for the eastern United States, Great
Lakes states, and western United States). Plaintiff’s references to lynx habitat
preferences in other parts of the country is inapposite – lodgepole understory
density in the North Cascades and upland forest composition in Minnesota simply
do not provide any meaningful insight into lynx behavior on dry southerly aspects
in western Montana. In short, it is precisely the Forest Service’s attention to the
Lolo National Forest’s microclimate and on-the-ground conditions that renders its
mapping methodology anything but arbitrary and capricious. Plaintiff’s claim on
this point fails.
The Project’s likely effects on lynx habitat connectivity.
Plaintiff claims that the Project “does not provide for connectivity of lynx
habitat,” and “may affect lynx by increasing road density, removing vegetative
cover and habitat, displacing lynx, and interrupting linkage.” (Doc. 27 at 12-13.)
Defendants counter that “[t]he [P]roject maintains and, in most cases, improves
upon the habitat connectivity in the [P]roject area.” (Doc. 31 at 14.) Again,
Defendants have the stronger argument on this point.
The NRLMD accounts for lynx habitat connectivity through the ALL S1
standard. The standard requires that any “[n]ew or expanded permanent
development and vegetation management projects must maintain habitat
connectivity in an LAU and/or linkage area.” FS 040660 (emphasis added). To
“maintain” according to the NRLMD “means to provide enough lynx habitat to
conserve lynx . . . [i]t does not mean to keep the status quo.” FS 040671. The
NRLMD further defines “habitat connectivity” as “consist[ing] of an adequate
amount of vegetative cover arranged in a way that allows lynx to move around.”
FS 040670. Connectivity may be provided by “[n]arrow forested mountain ridges
or shrub-steppe plateaus,” as well as by “wooded riparian areas . . . across open
valley floors.” Id.
The Project is neither located in nor represents a lynx habitat linkage zone.
FS 040465. The Divide LAU measures 34,768 acres in size and contains
approximately 15,086 acres of potential lynx habitat, approximately 4,150 of
which are located within the Project area and approximately 367 of which are
proposed for treatment. FS 000087. The portion of the Divide LAU within the
Project area represents a peninsula of mapped lynx habitat – no aspect of the
Project poses a threat of disconnecting or fragmenting an otherwise continuous
swath of lynx habitat. FS 000086.
The Forest Service’s conclusions that “[a]ll proposed treatments would
maintain a mosaic of forested cover to provide for lynx travel,” and that “[t]he
substantial reduction in total and open road densities . . . would improve habitat
connectivity for lynx,” are not arbitrary and capricious given the scope of the
Project EA, the ALL S1 standard, and the specific attributes of the Divide LAU
and Project area. FS 000093. The ALL S1 standard does not require the Forest
Service to avoid any breaks in forest cover or to maintain wide travel corridors for
lynx movement. Indeed, the NRLMD simply mandates providing an “adequate”
amount of cover to facilitate lynx movement, which given the topography of the
Project area will likely consist of “narrow ridges” or “wooded riparian”draws.
The Forest Service specifically intends to exclude riparian corridors from any
proposed Project Treatment. (See infra Section III(A)) Further, contrary to
Plaintiff’s assertion, there is no indication that decommissioning or storing
approximately forty-five miles of forest road, while constructing approximately
one mile of new temporary road, will increase road density to the extent it affects
lynx movement in this area. In short, Defendants’ contention that the Project will
improve connectivity appears supported by the record, backed by the best
available science, and in compliance with NEPA and the APA.
Jeopardy under the ESA.
Finally, as to the Canada lynx, Plaintiff seems to allege that, because of the
foregoing failures related to habitat classification and connectivity effects, the
Forest Service has “violated its NEPA obligations both substantively and
procedurally” and is “depart[ing] from the mandate to protect and recover
imperiled species and their habitats” under the ESA. (Doc. 27 at 15.)
Notwithstanding that NEPA imposes only procedural requirements on government
agencies, Marsh, 490 U.S. at 371, nothing in the record indicates that the Forest
Service failed to adequately consider Project impacts or make information
regarding the Project available to the public, in violation of NEPA. The Forest
Service sent hundreds of scoping letters regarding the Project to a wide array of
recipients, among them property owners, commercial entities, political
subdivisions, and interest groups – including Plaintiff. FS 000338-000349. The
scoping letter itself directs recipients to the Lolo National Forest website, which in
turn links to a specific webpage describing the Project and listing individual
analysis documents. FS 000350-000352.
Further, the Forest Service discharged its lynx-related duties under the ESA
vis-a-vis the Project. The Forest Service analyzed the Project’s likely impacts on
the Canada lynx, made a determination that the Project “may affect but is not
likely to adversely affect” the species, published its determination in the EA, and
informed the Fish & Wildlife Service of its conclusion. FS 000084-000095,
003782. The Fish & Wildlife Service agreed with the Forest Service, providing
the following rationale in its concurrence letter:
The Service bases its concurrence on the information and
analysis in the amended biological assessment prepared
by Lorraine Brewer, Forest Wildlife Biologist. The
proposed action is located with[in] the Divide Lynx
Analysis Unit (LAU). Critical habitat for lynx is not
designated in the action area. The proposed action is
consistent with all applicable standards and guidelines of
the Northern Rockies Lynx Management Direction.
Approximately 32 acres of stand initiation snowshoe
hare habitat may be underburned as a result of ecosystem
maintenance burning. Approximately 3,551 acres of
stand initiation snowshoe hare habitat occur within the
LAU and the amount affected by the proposed action (32
acres) is about .9 percent. In addition, approximately
8,244 total acres of snowshoe hare habitat, including
both stand initiation and multistory, occur within the
LAU and the amount affected by the proposed action (32
acres) is about .4 percent. We agree with the conclusion
in the biological assessment that project related impacts
would not likely adversely affect Canada lynx.
FS 003822-003823. “Under the APA's deferential standard of review, agency
action is presumed to be valid if there is a reasonable basis for the decision.”
Conservation Congress v. U.S. Forest Service, 720 F.3d 1048, 1057 (9th Cir.
2013) (citations omitted). The Forest Service had a reasonable, reliable factual
basis for its lynx conclusion, and the Fish & Wildlife Service reasonably relied on
that basis in its concurrence – nothing in the record indicates that either agency
acted arbitrarily, capriciously, or contrary to the law. Plaintiff’s ESA claim
regarding the lynx is without merit.
Plaintiff alleges that the Forest Service violated the ESA in this case by
failing to draft a biological assessment for the wolverine, an ESA proposed-listed
species. (Doc. 27 at 16.) Plaintiff further alleges a failure on Defendants’ part “to
provide data or other information regarding wolverine population levels and
viability in the Project area,” and “a failure to take a ‘hard look’ at Project impacts
on the wolverine” – purported violations of NFMA and NEPA respectively. (Id.)
Defendants counter that the level of analysis undertaken as to the wolverine, and
the findings flowing therefrom, satisfy applicable statutory requirements.
At the time Plaintiff filed its motion for summary judgment in this case, the
Fish & Wildlife Service had published a rule “propos[ing] to list the distinct
population segment of the North American wolverine occurring in the contiguous
United States, as a threatened species under the” ESA. 78 Fed. Reg. 7864-7890
(proposed Feb. 4, 2013). Fish & Wildlife Service regulations indicate that, “[i]f
only proposed species . . . may be present in the action area, then the Federal
agency must confer with the [Fish & Wildlife] Service if required under § 402.10,
but preparation of a biological assessment is not required unless the proposed
listing and/or designation becomes final.” 50 C.F.R. § 402.12(d)(1). In turn,
§ 402.10 requires such a conference, “consist[ing] of informal discussions,” only
when a proposed agency action “is likely to jeopardize the continued existence of
[the] proposed species or result in the destruction or adverse modification of
proposed critical habitat.” 50 C.F.R. § 402.12(c).
In August of this year, after the parties had fully briefed their respective
summary judgment motions, the Fish & Wildlife Service withdrew its proposed
rule to list the wolverine under the ESA, having concluded “that the factors
affecting the [distinct population segment] as identified in the proposed rule
[were] not as significant as believed at the time of the proposed rule’s
publication.” 79 Fed. Reg. 47522 (August 13, 2014). Very generally, the Fish &
Wildlife Service determined that the potential effects of climate change on the
North American wolverine population are too speculative at this time to warrant
listing pursuant to the factors in 16 U.S.C. § 1533(a)(1)(A)-(E). Id. at 4754347545. Consequently, the wolverine is not currently a proposed listed species
according to the Fish &Wildlife Service.
Plaintiff’s argument as to the adequacy of the Forest Service’s wolverine
analysis and consultation fails, both under the standards applicable when the
species was proposed for listing as threatened and, clearly, under the lack of
applicable ESA-based standards given the wolverine’s current status. Prior to
withdrawal of the proposed rule, the Forest Service would have been required to
“initiate the conference with the [Fish & Wildlife Service]” only if it found that
the Project was “likely to jeopardize the continued existence” of the wolverine. 50
C.F.R. § 402.10(a), (b). As the Forest Service described in the EA, the Project is
unlikely to have an impact on the wolverine because: “the size of the proposed
project is much smaller than an average wolverine home range; the area lacks
quality wolverine denning habitat; the potential for disturbing even one individual
is low; and the treatments would not convert the area to non-forest, reduce
ungulate densities, or increase motorized access.” FS 000106. Because the Forest
Service determined that the Project would have no measurable impact on the
wolverine, let alone jeopardize its continued existence, and because the wolverine
was merely proposed for listing at the time, the Forest Service’s conclusion would
have satisfied the letter of the Fish & Wildlife Service regulations. The Fish &
Wildlife Service could have “request[ed] a conference if, after a review of
available information, it determine[d] that a conference [was] required” due to the
Project’s effects on the wolverine; the record indicates it chose not to request such
a conference. 50 C.F.R. § 402.10(b).
The Fish & Wildlife Service’s August 2014 proposed rule withdrawal
simplifies the analysis even further – absent a proposal to the list the wolverine,
the Forest Service is currently under no obligation to confer or consult with the
Fish & Wildlife Service regarding effects on the species, nor is it required to
prepare a biological assessment as Plaintiff claims.
As to Plaintiff’s claims that the Forest Service failed to provide wolverine
population and viability data in violation of the NFMA and NEPA, Defendants
rightly point out that the Lolo National Forest Plan does not contain any
provisions that require the Forest Service to do so. Instead, the Lolo National
Forest Plan simply mandates that the Forest Service “manage [forest lands] to
maintain population viability” of sensitive species, including the wolverine. FS
034660. As described in detail above, the purpose of the Project is, in part, to
increase the quality of habitat available for species in the Project area – nothing in
the record indicates that Project activities will negatively impact wolverine
III. Sensitive and Management Indicator Species (MIS).
Plaintiffs allege that the Forest Service failed to meet its obligations under
the NFMA regarding monitoring and management of fisher, a Forest Service
sensitive species, and goshawk, a Lolo National Forested designated MIS.
Defendants contend that the Forest Service complied with the letter of the Lolo
National Forest Plan in reviewing Project impacts on these species.
Fisher population trend monitoring.
Plaintiff alleges that, because the Forest Service has not collected
population data regarding the fisher, the agency cannot “support its decision to
permit logging in [fisher] habitat” and “has not taken a hard look at Project
impacts on the fisher.” (Doc. 27 at 21). Defendants counter, as they did regarding
the wolverine, that the Lolo National Forest Plan does not require collection of
population data for the fisher, and that nevertheless the Forest Service sufficiently
analyzed the Project’s likely effects on the species. The record again supports the
Forest Service’s analysis and conclusions.
Like the wolverine, Forest-wide Standard No. 27 of the Lolo National
Forest Plan applies to the fisher, as a sensitive species, and requires that the Forest
Service “manage to maintain population viability.” FS 034660. Forest-wide Goal
No. 2 applies more generally, and requires that the Forest Service “provide habitat
for viable populations of all indigenous wildlife species.” FS 034647. The Plan
defines a “viable population” as one “which has adequate numbers and dispersion
of reproductive individuals to ensure the continued existence of the species
population in the planning area.” FS 034982. The “planning area” in this
instance, defined as “the area of the National Forest System covered by a Regional
or Forest Plan,” is plainly all of the Lolo National Forest’s approximately 2.1
million acres. FS 034634, 034965.
Plaintiff essentially contends that Standard No. 27 and Goal No. 2 impose
an obligation upon the Forest Service to monitor population levels as the measure
of fisher population viability. (Doc. 27 at 18.) Plaintiff relies on the 1982
National Forest System Land and Resource Management Planning regulations as
the basis for this contention, because § 219.19 of those regulations imposed
identically-worded viability requirements alongside the requirement that the Forest
Service monitor MIS population trends “in cooperation with State fish and wildlife
agencies, to the extent practicable.” 47 Fed. Reg. 43026, 43048 (Sept. 30, 1982).
Because the Lolo National Forest Plan expressly imported Standard No. 27 and
Goal No. 2 from the 1982 regulations, Plaintiff argues that the monitoring
requirement is an implied stowaway.
The Ninth Circuit decided this very same issue in favor of the Forest
Service in Earth Island Institute, 697 F.3d at 1010. In that case, the plaintiff
alleged that the Lake Tahoe Forest Plan incorporated the 1982 regulations’ MIS
monitoring requirement by virtue of the Plan’s express requirement that the Forest
Service “manage habitat to, at least, maintain viable populations of existing native
and desired nonnative species.” 697 F.3d at 1014 (citation omitted). However,
“because the 1982 rule was superceded in 2000” by updated planning regulations,
the Ninth Circuit court stated that “the requirements of the superceded 1982 rule
apply only to the extent they are incorporated into the relevant forest plan.” Id. at
1013-1014 (citations omitted). The court ultimately held that the Lake Tahoe
Plan, through the above requirement, “did not incorporate the 1982 rule’s viability
requirement.” Id. at 1014 (emphasis added); see Earth Is. Inst. v. Carlton, 626
F.3d 462, 470 (9th Cir. 2010) (finding that a forest plan, which stated that the
Forest Service “will provide the fish and wildlife habitat and other ecological
conditions necessary to maintain well-distributed viable populations of vertebrate
species in the planning area, and maintain the diversity of plants and animals,” did
not contain a viability or monitoring requirement); compare with Lands Council,
537 F.3d at 992 (finding that a forest plan, which “requires the Forest Service to
manage the habitat of species . . . to prevent further declines in populations which
could lead to federal listing under the Endangered Species Act,” did contain a
There is no substantive difference between the forest plan language in Earth
Island Institute v. U.S. Forest Service, Earth Island Institute v. Carlton, and the
language at issue here, and thus no basis for imposing a fisher population
monitoring requirement on the Forest Service for this Project. The Forest Service
adopted the Lolo National Forest Plan in 1986, four years after implementing the
1982 regulations. The Plan incorporates some, but not all, of the language from §
219.19; the Forest Service could have included the section in its entirety, but
chose not too. Per Earth Island Institute v. U.S. Forest Service, only those
portions of the 1982 regulations expressly incorporated into the Lolo National
Forest Plan control, meaning the Forest Service need only “manage to maintain
population viability” in this case. FS 034660; 47 Fed. Reg. at 43048.
The record indicates that the Project will accomplish exactly that. First,
utilizing a source that Plaintiff does not take issue with,3 the Forest Service
identified approximately 5,558 acres of potential fisher habitat within the Project
area. FS 000102. Of that, the Forest Service determined that approximately 480
acres of habitat, “distributed in small disjunct patches across 23 treatment units,”
would be affected by commercial treatments. FS000101. Approximately 53% of
the identified habitat, or 2,960 total acres, would be affected by non-commercial
treatments, primarily consisting of ecosystem maintenance burning over 2,732
acres. Id. The Forest Service noted in the EA that these treatments are “designed
to mimic mixed-severity fire regimes and increase structural diversity that may
benefit fisher and fisher prey in the long-term.” Id. Project activities will avoid
3. Fred Samson, Habitat Estimates For Maintaining Viable Populations of the Northern
Goshawk, Black-backed Woodpecker, Flammulated Owl, Pileated Woodpecker, American
Marten, and Fisher USDA Forest Service, Region One (2006).
riparian areas/corridors and old growth, in accordance with current conservation
management recommendations. FS 000100-000101. At the outset, the Forest
Service noted that the Lolo National Forest contains approximately 530,782 of
winter fisher habitat and 159,136 acres of summer fisher habitat, well above the
100,078 acre “estimated critical habitat threshold for maintaining a minimum
viable population of fisher across all of Region One.” FS 000099.
Ultimately, the Forest Service determined that the Project is unlikely to
negatively impact fisher population viability because: (1) “the potential for
negatively impacting even one individual fisher is low”; (2) “[t]he project
proposes to commercially treat a modest 9% of suitable and potential fisher habitat
distributed in small, disjunct patches across multiple treatment units”; (3)
ecosystem maintenance burns “are expected to restore ecological processes
consistent with mixed-severity fire regimes, providing a mosaic of burned and
unburned patches of varying intensity which may resemble the natural
disturbances and the succession that follows’”; (4) “[f]orest/riparian ecotones,
where optimum fisher habitat occurs, would be adequately protected through no
harvest buffers . . . and road decommissioning and storage”; (5) “[c]oarse woody
debris and snags would be retained . . . [and] no old growth fisher habitat would be
impacted”; (6) “total and open motorized densities would be reduced . . . [,
increasing] habitat security and landscape connectivity”; and (7) the Project
“would not change the age or size class distribution of fisher habitat . . . consistent
with management recommendations for fisher.” FS 000104 (citations and internal
quotation marks omitted). This conclusion is supported by the record, not
arbitrary and capricious, and sufficient to meet the Forest Service’s obligations
under the NFMA and Lolo National Forest Plan.
Goshawk population trend monitoring.
Plaintiff contends, as it did with the fisher, that the Forest Service violated
the NFMA as to this Project by failing to monitor goshawk population trends.
(Doc. 27 at 21-23). Defendants counter that the Lolo National Forest Plan does
not require population trend monitoring, but rather requires habitat monitoring
which the Forest Service adequately performed in this case. (Doc 31 at 24-28.)
The Court agrees with Defendants on this issue.
The Court will not repeat its analysis from Section III(A) as to the level and
type of monitoring generally required of the Forest Service for MIS pursuant to
the Lolo National Forest Plan. Forest-wide Standard No. 27 does, however, add a
variable to the goshawk equation that was not present with the fisher: the Plan
indicates that, “[a]s monitoring technology becomes available for the goshawk . . .,
population trends will be monitored,” and that “[i]n the interim, habitat parameters
including old-growth acres and condition, and snag densities will be monitored as
an indicator of population trend.” FS 034660. Plaintiff contends that the Forest
Service should be able and required to collect goshawk population data, stating
that “[i]n the more than quarter-century since [the above] standard was imposed, it
would be hard to argue that monitoring technology isn’t available for the goshawk,
since the basic technology is as simple as counting birds and/or nests.” (Doc. 27
at 22). Defendants argue that “technology has not solved monitoring problems,”
and that this task is not as simple as Plaintiff contends.
This Court will not second-guess Defendant’s description of the difficulties
inherent in tracking a hawk species with an average home range of 5,000 acres.
Defendants state that a simple accounting of goshawk individuals or nests
“encompasses difficulties like defining the proper analysis area, finding reliable
monitoring methods, retaining qualified and reliable personnel, and dealing with
access problems like weather and topography.” (Doc. 31 at 25.) Defendants
further state that “[e]ven greater problems attend population trend monitoring,
including consideration of stochastic events, birth/death rates etc.” (Id.) Plaintiff
fails to cite to any science or methodology to the contrary, and this Court is
cognizant “of the deference [it] must apply to the Forest Service's scientific
judgments regarding methodology and its interpretation of its own forest plans.”
Friends of the Wild Swan v. Weber, ___ F.3d ___, 2014 WL 4723559 at *9 (9th
Cir. Sept. 24, 2014). The Forest Service is not required to monitor the goshawk,
which defies available monitoring techniques..
Nevertheless, the Forest Service is required to monitor “habitat parameters
including old-growth acres and condition, and snag densities,” and the record
indicates that the agency did so. FS 034660. The Project EA describes the Forest
Service’s consideration of old growth on the Lolo National Forest and within the
Project area as follows:
As discussed in the Forested Vegetation section of this
EA, the Lolo NF Plan EIS established a strategy for
defining and distributing old growth habitat Forest-wide.
The Lolo NF was segregated into 71 drainages, and a
minimum of 8% (all habitat groups combined) was
allocated as old growth in most drainages where
wilderness was not available. Old growth was
distributed by habitat groups that range from warm dry
types at lower elevations to moist types at higher
elevations, recognizing the individual needs of various
old growth dependent species. Management Area 21
(MA 21), representing about 2% of the Forest, was also
designated in the Plan to evenly distribute old age stands
for associated wildlife Forest-wide.
Using the definition of old growth in the Lolo NF Plan
conservative estimates derived from FIA data collected
between 1995 and 1996 show at least 14.4% of the
Forest is old growth or over mature timber. This
estimate far exceeds the 8% standard in the Lolo NF
Plan. Using the Region One definition of old growth,
conservative estimates from FIA data show the Lolo NF
is comprised of 9.6% old growth (90% CI 7.7 to 11.5%),
slightly above the 8% standard in the Plan and far above
the 2% allocated in MA21.
Alternative 2 would not commercially treat a single acre
of old growth habitat as defined by Green et al. or the
Lolo NF Plan. In addition, commercial and noncommercial treatments would not preclude stands that
currently do not meet Green et al. from developing into
old growth in the future. Nesting and foraging habitat
for the northern goshawk and pileated woodpecker . . .
would remain abundant and widespread in the analysis
area, Forest- and Region.
FS 000120 (citations omitted). The Forest Service determined that the Project area
can support five goshawk home ranges; each home range in turn requires 180
acres of nesting habitat. FS 000121. The Forest Service concluded that, with 364
total acres of goshawk habitat slated for commercial thinning, the Project would
maintain approximately 2,690 acres of goshawk nesting habitat in the Project area,
a figure which exceeds the 900 acres of nesting habitat needed to support five
home ranges. Id. Further, during Project implementation, “[i]f an occupied nest
area is located in a proposed treatment unit a minimum 40-acre no treatment buffer
would be centered on the nest to completely conserve the nest area,” and “[n]o
ground-disturbing activities would occur in a 420-acre post-fledgling area (PFA)
centered on the occupied nest from April 15 (courtship and egg laying) through
August 15 (30 days post-fledging when juvenile feathers become hardened and are
capable of sustained flight . . . .).” FS 000123. Similar analysis attends the Forest
Service’s review of snag density in the Lolo National Forest and the Project’s
likely effects on snag density. FS 000124-000125. The Court is satisfied that the
Forest Service complied with the Lolo National Forest Plan regarding the Project,
and that the agency’s conclusion regarding maintenance of goshawk habitat is not
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A).
Proxy-on-proxy MIS analysis.
Dovetailing with the above goshawk argument, Plaintiff’s final issue
regarding the Forest Service’s consideration of MIS centers on the agency’s
alleged inappropriate application of so-called “proxy-on-proxy” analysis. (Doc.
27 at 23-27).
Proxy-on-proxy analysis occurs when the Forest Service uses “habitat as a
proxy for viability” of an MIS, then uses the MIS “as an indicator of the
population of another species,” Friends of the Wild Swan, 2014 WL 4723559 at
*9. “The use of this proxy approach is appropriate 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.” Id. at *10 (citations and internal
quotation marks omitted). Proxy-on-proxy analysis is inappropriate where there is
“no data indicating the presence of the species in the area, no suggestion [of]
difficulty monitoring the species, and a flaw in the Forest Service’s methodology
that . . . undermine[s] the use of the habitat proxy approach.” Id. (citing Native
Ecosystems Council v. Tidwell, 599 F.3d 926 (9th Cir. 2010)).
Plaintiff likens goshawk presence in the Project area to the circumstances
underlying the Ninth Circuit’s rejection of proxy-on-proxy analysis in Tidwell. In
Tidwell, the Forest Service project at issue involved livestock grazing on eleven
separate allotments over a 48,000-acre swath of mountainous sagebrush grassland
in southwest Montana. 599 F.3d at 929. The Beaverhead-Deerlodge National
Forest Plan designated the sage grouse as an MIS for sagebrush wildlife habitat on
forest lands, including those within the project area, because the “sage grouse is
entirely dependent on sagebrush ecosystems.” Id. at 930. However, the record in
the case indicated that the closest active sage grouse breeding area was
approximately eleven miles away from the project area, and that there had been no
confirmed sage grouse sighting in the project area in the previous fifteen years. Id.
at 931. Consequently, the Ninth Circuit court held on appeal that the Forest
Service’s reliance on sagebrush habitat as a proxy for the sage grouse MIS was
misguided given “[t]here [was] simply no basis to evaluate the Forest Service’s
assertion that the sagebrush habitat [was] sufficient to sustain viable sage grouse
populations when sage grouse [could not] be found in the project area.” Id. at 934.
The situation here is different, and Tidwell does not undercut the Forest
Service’s goshawk analysis on the Project. First, goshawks have been observed in
the Project area in the past fifteen years. FS 011357-011361. Indeed, though not
required to monitor goshawk populations, the Forest Service has surveyed for and
found the MIS in and around the Project area:
Goshawk surveys were conducted in and near proposed
commercial and non-commercial thinning treatment units
in the summers of 2009, 2010, and 2012 using acoustical
calling methods (Woodbridge and Hargis 2006) at
calling stations placed every 300 meters (Project File).
A silent approach by an adult goshawk occurred on two
occasions near Units 8, 9, 10. Intensive nest searches in
and near the units did not result in locating a nest.
FS 000120. Considering the 5,000-acre average size of a goshawk home range,
the Court finds it noteworthy that the species was twice observed in the
approximately 36,000 acre Project area within the three years preceding
publication of the EA. These observations are quantitatively and qualitatively
distinct from the total absence of the sage grouse in Tidwell.
Second, as discussed above, Plaintiff has not made a compelling showing
either that the Forest Service has failed to employ the state-of-the-goshawkdetection-art, or that the Forest Service’s detection methodology is somehow
flawed. The record is replete with examples of the great lengths to which the
Forest Service has gone to detect goshawks, well beyond simply walking around
in the woods counting birds and nests, as Plaintiff simplistically suggests. The
Forest Service consistently utilized acoustical calling methods set out at predetermined intervals to form what amounted to a detection grid.4 FS 010224,
11169. The resulting frequency with which these means actually detect goshawks
reflects the species’ wide geographic dispersion, not a flaw in the means
themselves, and highlights the reason why the Forest Service is permitted to utilize
MIS and proxy analysis in the first place. See Inland Empire Public Lands
Council v. U.S. Forest Serv., 88 F.3d 754, 762 (9th Cir. 1996). Ultimately, the
Forest Service’s use of proxy analysis in this case was neither arbitrary,
capricious, nor in derogation of the Lolo National Forest Plan.
Westslope Cutthroat Trout.
Plaintiff alleges that the Forest Service “violat[ed] NFMA, APA, and NEPA
3. Plaintiff does not take issue with the Forest Service’s use of what appears to be the best
available science concerning goshawk detection: Brian Woodbridge and Christina D. Hargis,
Northern Goshawk Inventory and Monitoring Technical Guide USDA Forest Service (2006).
by failing to ensure the population viability of [w]estslope cutthroat trout,
inadequately addressing how deliveries of sediment to streams and other habitatdegrading activities will affect native populations of this sensitive species, and has
not taken a hard look at cumulative effects on Westslope cutthroat trout
populations and fisheries habitat.” (Doc. 27 at 27).
As an initial matter, Plaintiff’s contention that the Forest Service failed to
collect data regarding the numbers or distribution of westslope cutthroat trout in
the Ninemile Creek drainage is unavailing, considering that the Forest Service
relied on well-maintained and extensive fish count data available through the State
of Montana’s Department of Fish, Wildlife & Parks. FS 005251-005256, 005337.
The Forest Service is required to base its decisions on the best scientific data
available, and in this case reasonably determined that the State of Montana had
collected such a dataset. No identified statutory provision requires the Forest
Service to duplicate existing, reliable information sources.
The Lolo National Forest Plan requires the Forest Service to design “[l]and
management practices . . . to have a minimum impact on the aquatic ecosystem,
free from permanent or long-term unnatural imposed stress.” FS 034660. The
Plan defines a “long-term stress . . . as a downward trend of indicators such as
aquatic insect density or diversity, fish populations, intragravel sediment
accumulations, or channel structure changes that continue for more than [one]
hydrologic year as determined by procedures outlined in the Forest Plan
Monitoring Requirements.” Id. The Plan further mandates that “[p]roject level
assessments will address the potential impacts of management activities on offForest aquatic resources by considering and evaluating downstream data wherever
The Forest Service is required to monitor the above four indicators in order
to meet Forest Monitoring Requirement 2-2, which calls for “validation of aquatic
habitat quality and fish population assumptions used to predict [the] effects of
management activities and an evaluation of actual effects.” FS 034874.
Requirement 2-2 mandates annual reporting on this goal, and requires further
evaluation of aquatic habitat and/or fish populations if such reporting reveals a
decline in either of the two lasting more than one year. Id.
Plaintiff does not advance any arguments specifically regarding the
Project’s effects on insect density and diversity, fish populations, or channel and
streambank changes. Plaintiff does argue that the Forest Service failed to
adequately assess the extent to which the Project will result in increased sediment
deliveries to streams within the Project area. The record does not support
Plaintiff’s contentions on this point.
The Forest Service modeled the impact of what it determined were the
Project’s three most likely sediment sources: (1) haul-related road use, (2) road
decommissioning, and (3) culvert replacement. FS 007838-007839. The Forest
Service calculated a short-term uptick in sediment delivery as a result of the
Project, but modeling indicated the increase would dissipate within five years. FS
007839. Modeling also indicated that, following the short-term increase, Projectrelated activities would actually decrease the total amount of sediment delivered to
streams within the Project area by approximately 208 tons over a ten-year period
following implementation, as compared to the no-action alternative. FS 007839.
The Forest Service’s water resources report for the Project described the modeling
methodology as follows:
Data extrapolation in terms of field inventory, GIS
accuracy, and modeling requires interpretations that are
suitable for general comparison and understanding
trends, but may not be completely accurate for all
settings. Models simplify extremely complex physical
systems and are developed from a limited database.
Although specific quantitative values for sediment and
water yields are generated herein, the results are used
only as a tool in the interpretation of how real systems
may respond. Models used herein include Water Erosion
Prediction Project (WEPP) and Equivalent Clearcut Area
(ECA) tools and methodologies. Both WEPP and ECA
methodologies are widely accepted as reasonable
interpretation and prediction tools in the dynamic forest
environs. Model results are generated for trend and
magnitude comparisons and should not be considered
absolute values. When evaluating sediment impacts on
water resources, use of the terminology “short-term”
refers to effects expected to last less than 2 years.
Predicted sediment delivery from road crossing
replacements and removals is not addressed by road
surface erosion models like WEPP. The assessment uses
monitoring results from actual culvert removal/
replacement on the Lolo and Bitterroot National Forests.
The data suggests that between 1.1 to 3.2 cubic yards (or
approximately 2.5 to 5 tons) of sediment can be expected
to be recruited to the channel and cause a local sediment
increase downstream as a onetime occurrence. Based on
the Lolo NF monitoring, stream crossing
removal/replacement may generate 1-2 cubic yards of
sediment (1-2.5 tons) per 500 cubic yards of road fill
volume involved. At the Lolo NF crossing removal, 0.4
tons of sediment was produced within 24 hours during
and following implementation. After 24 hours, sediment
levels had declined back to pre-work levels.
FS 007813-007814 (citations omitted). Plaintiff does not take issue with these
methods, and the Forest Service’s conclusion that the Project would “have a
minimum impact on the aquatic ecosystem, free from permanent or long-term
unnatural imposed stress” is supported by the results of employing those methods.
As to Plaintiff’s cumulative effects argument, the record again supports the
Forest Service’s Project analysis. NEPA implementing regulations define
“cumulative impact” as “the impact on the environment which results from the
incremental impact of the action when added to other past, present, and reasonably
foreseeable future actions regardless of what agency . . . or person undertakes such
other actions.” 40 C.F.R. § 1508.7. “Cumulative impacts can result from
individually minor but collectively significant actions taking place over a period
of time.” Id. The Forest Service is not required to parse out every individual,
historical contributing effect when analyzing cumulative impacts, and courts
generally defer to the Forest Service’s cumulative impacts analysis. League of
Wilderness Defenders-Blue Mountain Biodiversity Project v. U.S. Forest Service,
549 F.3d 1211, 1218 (9th Cir. 2008) (“the Forest Service is free to consider
cumulative effects in the aggregate or to use any other procedure it deems
appropriate . . . [i]t is not for [courts] to tell the Forest Service what specific
evidence to include, nor how specifically to present it”). The Forest Service need
only discuss past actions or conditions that are relevant to a particular project in its
cumulative impacts analysis. Ecology Center v. Castenada, 574 F.3d 652, 667
(9th Cir. 2009).
Contrary to Plaintiff’s assertion that the Forest Service’s cumulative effects
analysis is “cursory and unspecific” (Doc. 27 at 30), the EA contains ten pages of
fisheries and hydrological cumulative effects discussion. FS 000131-000140. The
fisheries direct and indirect effects analysis touches on a number of topics in the
context of the Project, including water quality, habitat access, habitat elements,
channel condition and dynamics, flow/hydrology, watershed conditions, and
integration of species and habitat conditions. FS 000133-000134. In the fisheries
cumulative effects analysis, the Forest Service concluded that: (1) “the most
important issues affecting fish populations in Ninemile Creek and the Rennick
[sic] Stark analysis area are poor mainstem habitat quality (lack of large complex
pools), warm summer water temperatures, and non-native fish species, . . . [n]one
of [which] would be addressed or affected under Alternative 2,” (2) “[s]light
reductions in sediment and improvements in connectivity may contribute to more
favorable conditions for native westslope cutthroat and bull trout over the longterm,” and (3) “[i]mprovements included in Alternative 2 when combined with
past restoration activities would continue to improve watershed trends and
conditions in the Ninemile Drainage.” FS 000135. Nothing in the record
indicates that the Forest Service failed to include relevant information in its past
fisheries cumulative impacts analysis. Likewise, when read with the direct and
indirect effects analysis preceding it, nothing in the record indicates that the Forest
Service failed to identify some significant future Project impact. The Forest
Service simply has not violated NEPA’s regulatory requirements through this
portion of the EA.
Need to prepare an EIS.
Plaintiff argues for the first time in its reply brief that the Forest Service
violated NEPA by failing to prepare a full EIS for the Project. Defendants, who
did have an opportunity to respond to this argument in their own reply brief,
counter that the Court should disregard the argument because it was not raised in
Plaintiff’s opening summary judgment brief. The Court agrees with Defendants.
“Legal issues raised for the first time in reply briefs are waived.” Alliance
for the Wild Rockies v. Weber, 979 F. Supp. 2d 1118, 1126 (D. Mont. 2013) (citing
Eberle v. City of Anaheim, 901 F.2d 814, 817-818 (9th Cir. 1990)). The Court
need “not ordinarily consider matters . . . that are not specifically and distinctly
argued in [an] opening brief.” Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d
983, 994-995 (9th Cir. 2009). Given the Court’s foregoing review and analysis of
each of Plaintiff’s claims, there is no need to further consider the argument that the
Forest Service neglected to prepare a full EIS – the record demonstrates that such
a measure was unnecessary here.
Plaintiff alleges a diverse array of statutory violations on the part of the
Forest Service as to the Rennic Stark Project. However, Plaintiff has not proved it
is entitled to judgment as a matter of law on any of its claims; on the contrary, the
Forest Service’s actions regarding the Project appear thoughtful, informed, and
undertaken in the best interests of this portion of the Lolo National Forest.
Consequently, Defendants are entitled to summary judgment in this case on all
IT IS ORDERED that Plaintiff’s motion for summary judgment (Doc. 23) is
DENIED as to all claims.
IT IS FURTHER ORDERED that Defendants’ motion for summary
judgment (Doc. 30) is GRANTED as to all claims.
IT IS FURTHER ORDERED that Defendants’ motion for leave to file a
response to Plaintiff’s notice of supplemental authority (Doc. 41) is DENIED as
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment
against Plaintiff and in favor of Defendants, and shall close this case.
Dated this 28th day of October, 2014.
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