Alliance for the Wild Rockies v. Paul Bradford et al

Filing 45

ORDER NUNC PRO TUNC . The motions for summary judgment (docs. 16, 21) are granted in part and denied in part. Defendants are enjoined from implementing the Project while the proceedings required on remand are pending. Plaintiff's motion to supplement is denied. Plaintiff's motion for preliminary injunction is denied as moot. Counsel for Plaintiff and Defendant shall meet within 15 days of the date of this order for the purpose of determining Plaintiff's attorney's fees, if any. The parties shall have 30 days from the date of this order to negotiate and agree upon a fee amount and file joint notice. Signed by Judge Dana L. Christensen on 7/25/2014. (NOS, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

ALLIANCE FOR THE WILD ROCKIES,

CV 13-199-M-DLC

Plaintiff,
ORDER
NUNC PRO TUNC

vs.
PAUL BRADFORD, Kootenai National
Forest Supervisor; FAYE KRUEGER,
Regional Forester of Region One of the
U.S. Forest Service; UNITED STATES
FOREST SERVICE, an agency of the
U.S. Department of Agriculture; and U.S.

FISH AND WILDLIFE SERVICE, an '
agency of the U.S. Department of Interior,

FILED
JUL 25 201'1
ClerK. u.s Oistrid Court

District Of Montana
Missoula

Defendants.
Plaintiff challenges the Pilgrim Creek Timber Sale Project. Both parties
move for summary judgment and for the reasons set forth below both motions are
granted in part and denied in part.
SYNOPSIS

The Pilgrim Creek Timber Sale Project ("the Project") is located on the
Cabinet Ranger District of the Kootenai National Forest in Sanders County,
Montana near the Cabinet-Yaak Ecosystem Grizzly Bear Recovery Zone. The
Project has several design elements, including: 536 acres of intennediate timber
1

harvest, 898 acres of regeneration timber harvest, 4,564 acres of natural fuels
reduction activities, or prescribed burning, 47 miles of road reconstruction, 1.1
miles of temporary road construction, and 4.7 miles of new, permanent road
construction.
Plaintiff contends the Project will harm grizzly bears. Specifically, Plaintiff
contends that the Project's authorization for construction of 4.7 miles of new,
permanent roads is inconsistent with the Kootenai National Forest Plan and the
2011 Access Management Amendments Incidental Take Statement and the Project
thus violates the National Forest Management Act ("NFMA"), the Endangered
Species Act (ESA), and the National Environmental Policy Act (NEPA). Plaintiff
also contends that the Forest Service violated NFMA and NEPA when it
authorized the use of helicopters to conduct much of the Project's prescribed
burning. Plaintiff seeks declaratory and injunctive relief.
The Court concludes that, as a general matter, properly barriered roads do
not contribute toward a net permanent increase in linear miles of open roads under
the Access Amendments, but that here, the new, permanent roads for the Project
will not be barriered in the manner required by the Access Amendments.
Accordingly, this matter is remanded to the Forest Service so that it can address
this deficiency. The Court also concludes that the Forest Service's analysis of
2

helicopter use for the Project is consistent with its duties under NFMA and NEPA.
BACKGROUND

I.

History
Some history is necessary to provide context to this dispute. The U.S. Fish

and Wildlife Service listed grizzly bears in the lower 48 states as a threatened
species under the Endangered Species Act in 1975. The population of grizzly
bears between 1800 and 1975 declined from estimates of over 50,000 grizzlies to
fewer than 1,000. The grizzly bear's historic range extended from the Great Plains
west to the California coast and south into Texas and Mexico. Today, there are
approximately 1,500 grizzly bears in the lower 48 states occupying certain
mountainous regions, national parks, and wilderness areas in Washington, Idaho,
Montana, and Wyoming.
With the grizzly bear's designation as a threatened species in 1975, the U.S.
Fish and Wildlife Service was required to design and approve a recovery plan for
the species. The Fish and Wildlife Service approved the original Grizzly Bear
Recovery Plan in 1982, and revised the Plan in 1993. The 1993 Recovery Plan
established six grizzly bear recovery zones: the Northern Continental Divide
Ecosystem (with a current popUlation of approximately 765 grizzly bears), the
Greater Yellowstone Area (600 grizzly bears), the Cabinet-Yaak Ecosystem (42
3

grizzly bears), the Selkirk Ecosystem (30 grizzly bears), the North Cascades
Ecosystem (10-20 grizzly bears), and the Bitterroot Ecosystem (0 grizzly bears).
Recovery zones are defines as "areas within which the population and habitat
criteria for achievement of recovery will be measured." AR 033604. As the
numbers above demonstrate, only five of the six recovery zones are currently
occupied by any grizzly bears, and four of the six recovery zones are occupied by
less than fifty bears.
The Cabinet-Yaak Ecosystem grizzly bear recovery zone, which is adjacent
to the Project area, encompasses approximately 2,609 square miles of
northwestern Montana and northeastern Idaho. The federal government owns
approximately 90 percent of the land within the Cabinet-Y aak Ecosystem recovery
zone and the Kootenai National Forest manages 72 percent of the recovery zone.
In 1991, the Fish and Wildlife Service determined that reclassification of
the grizzly bear within the Cabinet-Yaak Ecosystem from threatened to
endangered was warranted but precluded by higher priority actions. This
determination was reaffirmed in 1993, 1998, and 1999. In 1999, the Fish and
Wildlife Service stated that the Cabinet-Yaak population was in danger of
extinction due in part to habitat alteration and human intrusion into grizzly bear
habitat, specifically, the cumulative impacts of recreation, timber harvest, and
4

other forest uses associated with road construction. The Fish and Wildlife Service
currently considers the Cabinet-Yaak Ecosystem grizzly bear population to be
endangered due to continuing high levels of human caused mortality, genetic and
demographic isolation, inadequate habitat protections, and increasing
fragmentation.
As of 20 11, the Cabinet-Yaak Ecosystem was failing all three grizzly bear
population recovery targets, including the recovery target for number of female
grizzlies with young, the distribution of females with cubs throughout the recovery
zone, and the number of human caused mortalities per year within the recovery
zone. While the recovery target minimum population of grizzly bears in the
Cabinet-Yaak Ecosystem is 100 bears, the current population in the recovery zone
is approximately 42 bears. According to the Fish and Wildlife Service, "recent
levels of human-caused mortality in the [Cabinet-Yaak Ecosystem] do not appear
to be sustainable." FWS 000176.

II.

The Access Amendments
The Fish and Wildlife Service sought to address what it considered one of

the primary drivers of the problems facing the grizzly bears in the Cabinet-Yaak
Ecosystem, i.e., roads, in 2011 when it approved the Access Management
Amendments ("Access Amendments"). The Access Amendments "amend Forest
5

plans [in the Cabinet-Yaak and Selkirk Ecosystems] to include a set of wheeled
motorized access and security guidelines to meet [the Forest Service's]
responsibilities under the Endangered Species Act to conserve and contribute to
recovery of grizzly bears." AR 033799. The Access Amendments respond to the
Fish and Wildlife Service's continuing belief that "a viable road and access
management plan is the most important factor influencing the long-term impacts
on grizzly bears in habitat influenced by timber harvesting." FWS 000212.
According to the Fish and Wildlife Service, this is because "[rloads probably pose
the most imminent threat to grizzly habitat today [and] the management of roads is
one of the most powerful tools available to balance the needs of people with the
needs of bears." Id. The Kootenai National Forest, on which the Project area is
entirely located, formally adopted the Access Amendments into its Forest Plan in
November 2011.
The Access Amendments included "management direction" for roads within
the designated Cabinet-Yaak Ecosystem recovery zone and for areas outside of the
recovery zone that have experienced recurring use by grizzly bears. Agency
biologist have designated five Bears Outside of Recovery Zone polygons
("BORZ") which encompass areas adjacent to the Cabinet-Yaak Ecosystem where
grizzly bear use is recurring. The Fish and Wildlife Service has concluded that
6

these areas outside of the recovery zone "warrant[] some level of management
consideration." AR 033839-33840.
One of these areas outside of the recovery zone is the Clark Fork Bears
Outside of Recovery Zone polygon ("Clark Fork BORZ"). The Clark Fork BORZ
covers 101,899 acres, a majority of which is administered by the Kootenai
National Forest. There were 14 credible grizzly bear sightings within the Clark
Fork BORZ between 1994 and 2009.
The Access Amendments provide that within each individual BORZ, such
as the Clark Fork BORZ, there shall be "no permanent increases in the total linear
miles of 'open roads' and 'total roads' on National Forest System lands ... above
baseline conditions," except in cases where the Forest Service lacks any discretion
to prevent road building. FWS 000236. Increases in total linear miles of open and
total roads are, however, allowed when they are "temporary" or "compensated for
with in-kind reductions concurrently or prior to such increases." Id.

III.

The Project
The project area for the proposed Pilgrim Creek Timber Sale Project

encompasses approximately 36,602 acres and is located entirely within the Clark
Fork BORZ. According to the Forest Service and Fish and Wildlife Service, the
Project is "designed to improve growing conditions, reduce stand densities,
7

increase the proportion of root disease-resistant tree species, and increase age class
diversity in lodgepole pine dominated communities." FWS 000018. The agencies
also assert that the project will "improve forage production and quality." Id.
As noted above, the Project has several design elements, including, among
others: 536 acres of intermediate timber harvest, 898 acres of regeneration timber
harvest, 4,564 acres of prescribed burning, or natural fuels reduction (with 3,754
acres of the prescribed burning to be conducted by helicopter ignition), 47 miles of
road reconstruction, 1.1 miles of temporary road construction, and 4.7 miles of
new, permanent road construction. The timber harvest activities will focus on
Douglas-fir and true fir species affected by root-disease and lodgepole pine
communities damaged by mountain pine beetle infestation. The prescribed
burning will focus on areas where "coverage to forage ratios are currently skewed
towards cover and there is a need to improve both the quality and quantity of
available big game forage." AR 023598. While the Project contains no measures
for concurrent, in-kind road reductions, Defendants assert that all increases in
linear miles of road will be temporary.
Plaintiff challenges the Forest Service's approval of the Project and the Fish
and Wildlife Service's concurrence in the Forest Service's determination that the
Project is unlikely to adversely affect the grizzly bear. Plaintiff primarily contends
8

that the agencies' authorization for construction of 4.7 miles of new, permanent
road in the Clark Fork HORZ violates the Access Amendments and its incidental
take statement, is inconsistent with the Kootenai National Forest Plan, and is
arbitrary and capricious. Plaintiff also contends that the agencies failed to take a
hard look at and failed to apply best science with respect to the use of helicopters
for prescribed burning activities authorized by the Project. Plaintiff raises other
issues with the agencies' decisions that will be discussed in more detail below.

LEGAL 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.
DISCUSSION

Two of the Project's design elements are at the center of this dispute: (1) the
construction of 4.7 miles of new, permanent roads; and (2) the use of helicopters
9

for conducting prescribed bums.

I.

Roads
Plaintiff contends that the construction of 4.7 miles of new, permanent roads

as authorized by the Project is inconsistent with the Access Amendments'
Incidental Take Statement and constitutes a violation of section 9 of the ESA,
NFMA, and NEPA. Specifically, Plaintiff contends that under the Access
Amendments, new roads, even ifbarriered after completion of project activities,
must be counted in the measure of total miles of linear roads. Thus, Plaintiff
contends that linear miles of total roads will not be returned to baseline conditions
upon completion of the Project as required by the Access Amendments. Plaintiff
also contends that even if properly barriered roads do not count toward the
measure oflinear miles of total roads, the new, permanent roads will not be
properly barriered.
As the parties agree, a violation of the Access Amendments' Incidental
Take Statement constitutes a violation of section 9 of the ESA. Section 9 of the
ESA prohibits "take" of any listed species. 16 U.S.C. § IS38(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. §
10

1532(19); 50 C.F.R. § 17.3. If an agency action is likely to cause take but not
jeopardize the species, the Fish and 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). Ifan
agency complies with the terms and conditions of an incidental take statement, it is
exempt from ESA section 9 liability. 50 C.F.R. 402. 14(i)(5). In this case, if the
Project is in compliance with the Access Amendments and its incidental take
statement, then Defendants are exempt from any ESA section 9 liability that
Plaintiff has asserted.
Also, as the parties agree, to comply with NFMA the Project must be
consistent with the Access Amendments because the Access Amendments are
incorporated into the Kootenai National Forest Plan. NFMA requires that each
National Forest develop a Land and Resource Management Plan or "forest plan."
16 U.S.C. § 1604(d). A forest plan is implemented through site-specific actions.

Neighbors o/Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372, 1376 (9th
Cir. 1998). Under NFMA, site-specific projects must be consistent with the forest
plan. fd.; 16 U.S.C. § 1604(i). "Agencies are entitled to deference to their
interpretation of their own regulations, including Forest Plans." Native
11

Ecosystems Council v.

u.s. Forest Service, 418 F.3d 953,960 (9th Cir. 2005).

However, an agency interpretation is not entitled to deference when "it is contrary
to the clear language of a Forest Plan." Id at 962. Here, the Project must be
consistent with the Access Amendments in order to be consistent with the
Kootenai National Forest Plan.
Plaintiff also asserts that the Forest Service has violated NEPA by relying
on incorrect assumptions or data in the Environmental Impact Statement ("EIS")
associated with the Project. NEPA prohibits uninformed agency action.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332,350 (1989). An EIS
must take a "hard look" at a proposed project's environmental effects. Native
Ecosystems, 418 F.3d at 960. A district court "must make a pragmatic judgment"
whether an EIS fosters informed decision-making and informed public
participation and whether the EIS contains "a reasonably thorough discussion of
the significant aspects of the probable environmental consequences." California
v. Block, 690 F.2d 753, 761 (9th Cir. 1982).

A.

Whether "barriered roads" count toward the measure of total
linear miles of road under the Access Amendments

The Access Amendments provide "management direction" regarding roads
within Bear Outside of Recovery Zone polygons, such as the Clark Fork BORZ.

12

The parties agree that Standard IICB) is the applicable standard relevant to road
management on the Clark Fork BORZ.
Standard IICB) states that "[t]he Forest shall ensure no net permanent
increases in linear miles of total roads in any individual BORZ area above the
baseline conditions" except in certain circumstances where the agency lacks
discretion to prevent road building. FWS 000157. The term "total roads" is
footnoted, clarifying that "total roads" "[i]ncludes roads that do not have
restrictions on motorized use and roads that are closed to public motorized use."
fd. Standard IICB) further provides that "potential increases in linear miles of total

roads must be compensated for with in-kind reductions in linear total road miles
concurrently with, or prior to, new road construction." fd.
Notwithstanding this blanket prohibition on net permanent increases in
linear miles of total roads, Standard IICB) allows for temporary increases in linear
miles of total roads when certain conditions are met. First, "newly constructed
roads" must be "effectively gated and ... restricted with a CFR closure clarifying
they are not open for public use" during project activities. fd. Second, upon
completion of activities requiring use of the road,"[t]hese roads shall be closed
immediately .... Roads must be closed with a berm, guardrail or other measure
that effectively prevents motorized access, and put in a condition such that a need
13

for motorized access for maintenance is not anticipated for at least 10 years." Id.
Third, linear miles of total roads must be returned to baseline conditions upon
completion of the land management project.
Plaintiff contends that the Project fails to comply with Standard II(B) of the
Access Amendments because, according to Plaintiff, the 4.7 miles of new,
permanent roads must be counted in the calculation of linear miles of total roads
despite these roads being gated and restricted during project activities and then
barriered with a permanent barrier following completion of project activities. In
Plaintiffs view, "[j]ust because these new roads are closed to motorized use does
not exclude them from the calculation of Total Linear Road Mileage." (Doc. 30 at
6.) Plaintiff concedes that if "barriered roads are excluded from the Total Linear
Road Mileage calculation, then there would be no net increase in Total Linear
Road Mileage at the end of the Project, and the Project would comply with the
Access Amendment Incidental Take Statement standards." Id. at 3. Defendants
contend that barriered roads do not contribute to the measure of linear miles of
total roads and therefore there will be no net permanent increase in linear miles of
total roads.
The Court concludes that newly built roads that are gated during project
activities and then closed immediately upon completion of project activities such
14

that they qualify as "barriered roads" do not contribute to the measure of linear
miles of total roads. "Total roads," as used in the Access Amendments "include
roads that do not have restrictions on motorized use and roads that are closed to
public motorized use." FWS 000157. Thus, the term "total roads" does not
expressly include "barriered roads," which are closed to both public and
administrative use.
Standard II(B)(2) requires that following completion of project activities,
the new roads shall be "closed with a berm, guardrail or other measure that
effectively prevents motorized access." Id. Similarly, "barriered roads" are
defined as "roads that have been restricted with a physical barrier such as a rock
barrier, or dirt berm/ditch in order to prohibit all motorized use." AR 034284.
Moreover, unlike "restricted roads," which are merely gated and allow
administrative motorized use, "barriered roads" are "managed with the long term
intent for no motorized use, and [are] treated in such a manner so as to no longer
function as a road." AR 034151. Similarly, Standard II(B)(2) requires that any
new roads be closed "and put in a condition such that a need for motorized access
for maintenance is not anticipated for at least 10 years." FWS 000157. In sum,
Standard II(B)(2)'s requirements for closing new roads following project activities
directly parallels the definition of "barriered roads." Notably, "barriered roads,"
15

by definition, "contribute[] to optimal secure Core Area for grizzly bears." AR
034284.
Defendants correctly interpret Standard II(B) to exclude from the measure
of linear miles of total roads those roads that are "barriered" following completion
of project activities. Thus, if the 4.7 miles of new, permanent roads are
appropriately barriered and put in a condition such that a need for motorized
access for maintenance is not anticipated for at least 10 years the roads do not
result in a net permanent increase in linear miles of total roads. Accordingly,
Defendants are granted summary judgment as to this issue.

B.

Whether the new roads for the Project will be barriered in the
manner required by the Access Amendments

Though the Court concludes that properly barriered roads do not count
toward the measure of linear miles of total roads, here, another issue remains to be
decided: whether the Forest Service will in fact be closing these roads in the
fashion required by Standard II(B). Though certain portions of the administrative
record indicate that the new roads will be barriered with a permanent closure
device as required, see FS 024231, other portions of the record suggest that the
roads will merely be gated to "allow for motorized access sometime in the future,"
AR024315.

16

Standard II(B)(2) requires that new roads be "closed with a benn, guardrail
or other measure that effectively prevents motorized access, and put in a condition
such that a need for motorized access for maintenance is not anticipated for at least
10 years." FWS 000157. Standard II(B)(2) thus requires a closure distinct from a
closure associated with "restricted roads." Indeed, Defendants do not dispute that
"restricted roads," which are "generally gated" and open for "low intensity"
administrative use, increase the measure of total roads. FS 34284. Standard II(B)
makes clear that it is insufficient to "close" a road with an eye towards future
motorized access within ten years of the closure.
The following quotation from the Forest Service's Record of Decision for
approval of the Project indicates that, despite contrary indications elsewhere in the
record, upon completion of Project activities the new roads will not be
appropriately closed with a pennanent closure device as required by Standard
II(B):
Access to new construction and closed roads proposed for
use would be controlled post treatment by gates or other
closure devices. These closure devices allow for motorized
access sometime in the future, which may help fire
suppression and stand-tending operations such as pre­
commerical thinning (DEIS 3-39). Closed roads would
require minimal maintenance due to the infrequency ofuse.

17

FS 024315. The above quoted passage clearly indicates that the new roads will be
obstructed, not with a permanent closure device such as an earth berm or ditch, as
required by Standard II(B), but with a gate or other device in order to allow
maintenance, future motorized access, and other administrative uses. Standard
II(B) does not allow this. A gate is different in kind from an earth berm or
guardrail. Furthermore, leaving the road in a condition where its future use and
maintenance is contemplated and anticipated is inconsistent with Standard II(B)'s
requirements. The Forest Service's interpretation, by which these new roads may
be merely gated in order to allow various future motorized access, is contrary to
the plain language of the Access Amendments and is not entitled to deference.
Native Ecosystems, 418 F.3d at 962. Indeed, such an interpretation is contrary to
Defendants' legal position in this litigation.
The Forest Service may choose to gate these new roads in order to allow
future motorized access, maintenance, and other administrative uses, but if it
chooses this course, it must, pursuant to Standard II(B), make in-kind reductions
in linear total road miles concurrently with, or prior to, the new road construction.
If, on the other hand, the Forest Service does not wish to make in-kind reductions,
it must "barrier" the new roads consistent with all of the requirements of Standard
II(B)(2). Because the Project authorizes the Forest Service to "close" the new
18

roads in a manner that is inconsistent with the Access Amendments Incidental
Take Statement and the Forest Plan, the agencies' decision is not in accordance
with NFMA, the ESA, and NEPA. Accordingly, the Court remands this issue to
the Forest Service so that it can address this deficiency. The Forest Service must
decide how it will proceed with respect to either appropriately closing the new
roads following completion of Project activities or establishing in-kind reductions
in total road miles in the Clark Fork BORZ.

C.

Various other issues raised related to roads

Plaintiff contends that the agencies' failure to consistently disclose the
number of existing miles of total road mileage in the Clark Fork BORZ constitutes
a violation of NEP A. Plaintiff contends that the inconsistencies impeded informed
decision making and show that the agencies failed to provide a full and fair
analysis of the environmental effects of the new road construction.
It is undisputed that Plaintiff failed to raise any issue with respect to the
inconsistencies regarding total road mileage during the administrative review
process. Accordingly, Plaintiff waived the right to assert a NEPA violation on
this basis. Havasupai Tribe v. Robertson, 943 F.2d 32,34 (9th Cir. 1991).
Defendants are granted summary judgment as to this issue.
The Court also concludes that the Project does not violate the ESA due to
19

the errors in the Biological Assessment, which the agencies caught and corrected,
regarding the acreage of reduced habitat quality due to point source disturbances
and road use. 1 First, the record indicates that notwithstanding the erroneous
numbers listed in certain tables, "the actual effects of the selected action were
analyzed and discussed in the [draft] EIS and the effects and disturbance and total
road density did not differ enough between alternatives to warrant a different
determination." FS 042969. While Plaintiff suggests this statement and the
concurring statement by the Fish and Wildlife Service must be viewed with
suspicion, the opposite is true. The Court defers to the agencies' technical
expertise with respect to questions involving scientific matters. United States v.
Alpine Land & Reservoir Co., 887 F.2d 207,213 (9th Cir.1989). Furthermore, it
is apparent from a full reading of the Biological Assessment and draft EIS that,
just as the Forest Service stated in its errata, the actual effects were in fact
analyzed notwithstanding the apparent typographical error in the Biological
Assessment. The errors in the Biological Assessment that were caught before the
final decision was made and which were then explained in an errata do not
demonstrate that the agencies' determination that the Project is not likely to

1 While the Court remands to the Forest Service the issue of the Project's road impacts
for the reasons detailed in Part B above, the Court nevertheless provides here its decision with
respect to errors in the Biological Assessment.

20

adversely affect grizzly bears is arbitrary and capricious in violation of the ESA.
Defendants are entitled to summary judgment on this issue.

II.

Helicopters
Plaintiff contends that the Forest Service's analysis of the effects of

helicopter use for prescribed burning activities is flawed because it failed to apply
best available science as required by NFMA regulations, 36 C.F .R. § 219.3, §
219.3 5(a). Plaintiff further contends that the Forest Service's analysis regarding
helicopter use is incomplete and thus in violation ofNEPA.
As noted above, the Project calls for prescribed burning for natural fuels
reduction, with 3,754 acres of the prescribed burning to be conducted by
helicopter ignition. These prescribed burning activities will be conducted in
various predetermined locations scattered throughout the Project area of 29,987
acres over the course of approximately 10 years. The Forest Service determined
that the helicopter usage may affect but is not likely to adversely affect the grizzly
bear because (1) there will be few trips and no more than two activities per year
(2) there will be no more than two days of activities per analysis area per bear
year; (3) there will be no landings within the project area; (4) the duration of the
each helicopter activity is short; and (5) there will be no lingering effects. The
Forest Service explained that the prescribed bums "would vary from low to
21

moderate severity, leaving a mosaic of burned and unburned areas." AR 024252.
The Forest Service recognized that "a grizzly bear in the area may be disturbed by
bum activities" "for a brief period," but that "it is expected that bears and other
wildlife would return to these areas relatively quickly" to enjoy the resulting
"flush of young, palatable vegetation." ld.

A.

NFMA claim
Plaintiff contends the Forest Service's analysis is contrary to the joint

agency 2009 "Guide to Effect Analysis of Helicopter Use in Grizzly Bear Habitat"
("Guide"). The Guide states that "[i]fthe duration of helicopter use is short and
the effects are relaxed almost immediately ..., then low altitude helicopter
operations are generally 'not likely to adversely affect' grizzly bears." FWS
000373 (emphasis in original). The Guide specifies that "[h]elicopter use
involving short duration (e.g. one day) and low frequency (e.g. several trips) may
affect grizzly bears, but because the disturbance is relatively minor in intensity and
does not persist for long periods (or through a season), the consequences should
be insignificant." ld.(emphasis in original). Helicopter operations that are
generally unlikely to adversely affect grizzly bears include all of the following
features: "(1) low altitude (less than 500 m); (2) with or without landings; (3) in
proximity to grizzly bears or their habitat; (4) the effects are relaxed almost
22

immediately; and (5) the duration is short (activity usually concludes within a 48­
hour period)." FWS 000374. The Guide specifically lists "limited prescribed
burning" as an activity which is generally not likely to adversely affect grizzly
bears. Id.
By contrast, "extended prescribed burning" is listed in the Guide as an
activity which is generally likely to adversely affect grizzly bears. Such
operations are characterized by "low altitude helicopter use [that] is extended
(occurs over a 48-hour period), and the effects are not relaxed (multiple trips,
passes, or sweeps each day)." FWS 000374.
These general guidelines notwithstanding, the Guide recognizes that "[t]he
effects of helicopter operations on grizzly bears will depend on a number of
variables, plus considerations of any extenuating circumstances. It is
inappropriate to believe there is a 'cook book' or 'one size fits all' answer." FWS
000370.
Contrary to Plaintiff's assertion, the Final EIS demonstrates that the Forest
Service based its determination on and applied the best available science as set
forth in the Guide. The Forest Service's determination that the helicopter
operations are not likely to adversely affect the grizzly bear are clearly based on
the multiple variables and factors listed in the Guide. The determination is based
23

specifically on the low frequency of trips per year, the low duration of activities
per analysis area, the absence of landings in the project area, and the absence of
lingering effects. The Final EIS demonstrates that the Forest Service also
considered the location of the activity (i.e. the Clark Fork BORZ), the distribution
of the activities throughout the Project area, the intensity of the disturbance, the
effect of the operations on forage and bear habitat, the time of year of the
operations, and potential cumulative impacts associated with the helicopter
operations. Plaintiff thus fails to demonstrate that the Forest Service failed to
apply best available science in violation ofNFMA. Defendants are entitled to
summary judgment on this claim.

B.

NEPA claim
Plaintiff contends, in similar fashion, that the Forest Service failed to take a

hard look at the impacts of helicopter use on grizzly bears. In particular, Plaintiff
contends that the Forest Service failed to analyze helicopter use in terms of
frequency, duration, and altitude.
The Final EIS specifically discusses (1) the number of trips per year, (2) the
number of days per activity per analysis area per bear year; (3) the duration of
these trips; and (4) the fact that there will be no landings. Plaintiff recognizes that
the Final EIS discusses these factors, but contends that the analysis is too cursory
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to pass muster under NEPA.
The Court concludes that the EIS contains "a reasonably thorough
discussion of the significant aspects of the probable environmental consequences"
associated with helicopter use for prescribed burning activites. California v.

Block, 690 F.2d 753, 761 (9th Cir. 1982). Plaintiff contends that the analysis lacks
discussion of the altitude of the helicopter usage. It is clear, however, that the
Forest Service recognized that helicopter ignition for prescribed burning occurs at
low elevations. Indeed, the fact seems so obvious as to not need mention.
Notably, high altitude helicopter use has "no effect" on grizzly bears. FWS
000373.
More problematic, perhaps, is the Forest Service's limited analysis
regarding duration of helicopter activities. The Guide states that helicopter
activities of "short duration" "usually conclude[] within a 48-hour period," FWS
000374, whereas the Forest Service concluded that the duration of the Project's
helicopter activities is "short," despite the fact that the Project authorizes
helicopter activities lasting up to 48 hours, AR 024253. Though the Forest
Service's analysis with respect to duration of helicopter activities is not extended,
and falls within a gray area relative to the Guide, the Court concludes that this is
not fatal to the Forest Service's ultimate determination and does not demonstrate a
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violation ofNEPA. The Guide recognizes that "effects of helicopter operations on
grizzly bears will depend on a number of variables," and the EIS contains a
discussion of numerous of these important variables associated with the Project's
helicopter activities. FWS 000370. The Court therefore concludes that the Forest
Service conducted an analysis adequate to pass muster under NEP A. Defendants
are entitled to summary judgment as to this issue.

III.

Plaintiff's motion to supplement
One day after the deadline for such a motion, Plaintiff moved the Court to

supplement the administrative record with a document it refers to as "the full
Kootenai National Forest Plan," which is in fact an unapproved draft of a new
Kootenai National Forest Plan which was released on September 23,2013. (Doc.
12 at 2.) This document post-dates the Project decision and thus is properly
excluded from the administrative record. Vt. Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519, 555 (1978). Plaintiff asserts that the document is "relevant"

to the Court's decision, but Plaintiff did not reference this document in any way in
its summary judgment briefing. (Doc. 13 at 4.) Therefore, the Court did not rely
on the document, and indeed it was never filed in the docket. For these reasons,
Plaintiff s motion to supplement is denied.
IT IS ORDERED that the motions for summary judgment (Docs. 16, 21) are
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GRANTED IN PART and DENIED IN PART as detailed above. This matter is
remanded to the Forest Service for further proceedings consistent with this order
and the law:
IT IS FURTHER ORDERED that the defendants are enjoined from
implementing the Project while the proceedings required on remand are pending.
IT IS FURTHER ORDERED that Plaintiffs motion to supplement is
DENIED.
IT IS FURTHER ORDERED that Plaintiffs motion for preliminary
injunction is DENIED as moot.
The Court firmly believes that the amount of attorney's fees, if any, owed to
Plaintiff in connection with this action is most appropriately resolved by the
parties without the Court's intervention. An amicable and independent resolution
of this issue will not only conserve scarce judicial resources, but will save the
parties and their counsel the time and expense associated with formal proceedings
before the Court. Accordingly,
IT IS FURTHER ORDERED that counsel for Plaintiff and Defendant shall
meet within 15 days of the date of this order, either in person or telephonically, for
the purpose of determining Plaintiffs attorney's fees, if any. The parties shall have

• The Court's original Order (Doc. 40) mistakenly provided: "This matter is remanded to
the Forest Service so that it may prepare a supplemental EIS that is consistent with this order and
the law." This was a clerical error.
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until 30 days from the date of this order to negotiate and agree upon a fee amount.
The parties shall file a joint notice by that date stating whether they have resolved
the issue, or whether the Court must determine the appropriate award of fees and
expenses. Should the parties notify the Court that they are unable to resolve this
matter, the Court will issue a scheduling order for briefing that will supplant the
standard schedule set forth in Rule 54(d)(2) of the Federal Rules of Civil
Procedure.
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter
judgment in favor of Plaintiff and Defendants and close this case.
DATED this

2.5~day of June 20

.

Dana L. Christensen, Chief Judge
United States District Court

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