Alliance for the Wild Rockies et al v. Krueger et al
Filing
30
ORDER denying 21 Motion for Summary Judgment; granting 24 Motion for Summary Judgment. The Clerk of Court is directed to enter judgment in favor of Defendants and against Plaintiffs. This case is CLOSED. Signed by Judge Dana L. Christensen on 10/15/2015. (APP, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ALLIANCE FOR THE WILD
ROCKIES; NATIVE ECOSYSTEM
COUNCIL,
ocr 1s201s
Cler!<. (!.S District Court
Drstrict_ Montana
Of
Mrssoula
CV 14-191-M-DLC
ORDER
Plaintiffs,
vs.
FAYE KRUEGER, in her official
capacity as Regional Forester of
Region One of the U.S. Forest Service;
U.S. FOREST SERVICE, an agency of
the U.S. Department of Agriculture;
U.S. FISH & WILDLIFE SERVICE,
an agency of the U.S. Department of
Interior,
Defendants.
Before the Court are the parties' cross motions for summary judgment. For
the reasons explained below, the Court grants Defendants' motion for summary
judgment.
Background
Plaintiffs Alliance for the Wild Rockies and Native Ecosystem Council
challenge the approval by the United States Forest Service (USFS) and the United
States Fish and Wildlife Service's (USFWS) of the Rendezvous Trails Project (the
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Project).
The Project involves approximately 250 acres of commercial thinning of
lodgepole pine in the Rendezvous Ski Trail System. The Rendezvous Trail
System is a network of 35 kilometers of recreation trails, primarily used for cross
country skiing. While not determinative of the Court's ruling in this case, it is
worthy of note that this project does not involve large-scale logging and
construction of miles of new roads. In fact, as noted in the Decision Memo
approving this project, the area encompassed by this thinning project is a world
class Nordic Ski destination, which contains a biathlon shooting range, warming
huts, storage buildings and outhouses. This recreation facility is also used during
the summer months for biathlon-like events, mountain biking, and running and
hiking. Most ofthis area was also heavily logged between 1950 and 1980. The
Project is located adjacent to, and within two miles of West Yellowstone,
Montana. While the forest in the Project area is currently experiencing a low
population level of mountain pine beetles, the Forest silviculturist recommends
that the forest be thinned to maintain stands of healthy trees as they are very
susceptible to the next mountain pine beetle outbreak. The purpose of the Project
is to create and maintain a healthy forest in order to protect the aesthetic quality of
the trails even during a mountain pine beetle outbreak. The USFS found, and the
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USFWS agreed, that the Project is categorically excluded from documentation in
an environmental impact statement (EIS) or an environmental assessment (EA)
pursuant to 36 C.F.R. § 220.6(e)(14).
Plaintiffs' claims arise under the National Environmental Policy Act
(NEPA), the National Forest Management Act (NFMA), the Endangered Species
Act (ESA), and the Administrative Procedures Act (APA). Plaintiffs assert that
the Project violates the Gallatin National Forest Plan (Forest Plan), that
Defendants failed to take a hard look at the effects of the Project, that Defendants
should have initiated formal consultation regarding grizzly bear and lynx, and that
Defendants wrongfully dismissed Plaintiffs' pre-decisional appeal.
Legal Standards
I.
National Environmental Policy Act
"NEPA is a procedural statute that does not 'mandate particular results but
simply provides the necessary process to insure that federal agencies take a hard
look at the environmental consequences of their actions."' High Sierra Hikers
Ass 'n v. Blackwell, 390 F.3d 630, 639-40 (9th Cir. 2004) (internal citations
omitted); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351
(1989)(NEPA "prohibits uninformed-rather than unwise-agency action"). NEPA
requires government agencies to "consider every significant aspect of the
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environmental impact of a proposed action." Baltimore Gas & Elec. Co. v. NRDC,
462 U.S. 87, 97 (1983). NEPA also requires that relevant information be made
available to the public so that they "may also play a role in both the decision
making process and the implementation of that decision." Robertson, 490 U.S. at
349.
An agency may comply with NEP A in one of three ways. The agency may
prepare an EIS, prepare a less extensive EA and make a finding of no significant
impact, or document that the proposed action falls within an established
categorical exclusion. NEP A regulations authorize a categorical exclusion for a
"category of actions which do not individually or cumulatively have a significant
effect on the human environment and which have been found to have no such
effect in procedures adopted by a Federal agency in implementation of these
regulations." West v. Sec 'y ofDep 't ofTransp., 206 F .3d 920, 927 (9th Cir. 2000)
(citing 40C.F.R. § 1508.4). An agency must also determine that there are no
existing extraordinary circumstances where the excluded action may have a
significant environmental effect. 40. C.F.R. § 1508.4. The USFS's decision that
an action meets the requirements for a categorical exclusion will be upheld as long
as "the Forest Service considered the relevant factors and determined that no
extraordinary circumstances were present." Alaska Ctr. v. USPS, 189 F.3d 851,
4
859 (9th Cir. 1999).
While courts must "strictly interpret the procedural requirements in NEPA
and the CEQ regulations," Churchill County v. Norton, 276 F.3d 1060, 1071 (9th
Cir. 2001 ), courts must "be mindful to defer to agency expertise, particularly with
respect to scientific matters within the purview of the agency," Klamath-Siskiyou
Wildlands Center, 387 F.3d at 993 (internal citations omitted.) "[T]he ultimate
standard of review is a narrow one," and a court may not "substitute its judgment
for that of the agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 416 (1971).
II.
National Forest Management Act
NFMA requires forest planning of National Forests at two levels: the forest
level and the individual project level. 16 U.S.C. §§ 1600-1687. At the Forest
level, NFMA directs the Department of Agriculture to "develop, maintain, and, as
appropriate, revise [forest plans] for units of the National Forest System." 16
U.S.C. § 1604(a). A Forest Plan sets broad guidelines for forest management and
serves as a programmatic statement of intent to guide future site-specific decisions
within a forest unit. Citizens for Better Forestry v. US Dept ofAgriculture, 341
F.3d 961, 966 (9th Cir. 2003); Ohio Forestry Ass 'n, Inc. v. Sierra Club, 523 U.S.
726, 729 ( 1998). Forest Plans must "provide for multiple use and sustained yield
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of the products and services" derived from the National Forests, including
"outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness."
16 U.S.C. § 1604(e)(l).
At the individual project level, NFMA requires that each individual project
be consistent with the governing Forest Plan. Great Old Broads for Wilderness v.
Kimbrell, 709 F.3d 836, 851 (9th Cir. 2013).
The Forest Service's interpretation and implementation of its own Forest
Plan is entitled to substantial deference. Siskiyou Regional Educ. Project v. USFS,
565 F.3d 545 (9th Cir. 2009); Forest Guardians v. USFS, 329 F.3d 1089, 1099
(9th Cir. 2003).
III.
The Endangered Species Act
Section 7 requires an agency to ensure that no discretionary action will
"jeopardize the continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of [critical] habitat of
such species." 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.12(a). "Only after the
[agency] complies with§ 7(a)(2) can any activity that may affect the protected
[species] go forward." P. Rivers Council v. Thomas, 30 F.3d 1050, 1055-57 (9th
Cir. 1994).
A determination by the USFS in a biological assessment that an action "may
6
affect" a listed species or critical habitat gives rise to a consultation requirement
under section 7 of the ESA. Karuk Tribe of Cal. v. US. Forest Serv., 681 F.3d
1006, 1027 (9th Cir. 2012). The Ninth Circuit holds that "the minimum threshold
for an agency action to trigger consultation with the Wildlife Service is low." W.
Watersheds Project, 632 F.3d at 496.
There are two forms of consultation: formal and informal. Karuk Tribe of
Cal., 681 F.3d at 1027. Formal consultation is necessary where the USFS has
determined that an action is "likely to adversely affect" a listed species. But it is
not required if 1) the USFS 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 USFWS concurs in
writing. 50 C.F.R. §§ 402.120)--{k), 402.14(b)(l), 402.13(a).
IV.
The Administrative Procedure Act
Under the AP A, a federal court "shall ... 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; [or] without
observance of procedures required by law." 5 U.S.C. § 706(2). As recently
articulated by the Ninth Circuit:
Under this standard of review, an "agency must examine the relevant
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I
data and articulate a satisfactory explanation for its action." Motor
Vehicle Mfrs. Ass 'n of United States, Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). An agency's action is arbitrary and
capricious if the agency fails to consider an important aspect of a
problem, if the agency offers an explanation for the decision that is
contrary to the evidence, if the agency's decision is so implausible
that it could not be ascribed to a difference in view or be the product
of agency expertise, or if the agency's decision is contrary to the
governing law. Id.
Organized Village ofKake v. US. Dept ofAgriculture, 746 F.3d 970, 974 (9th Cir.
2014 ). Though a review of agency action under the AP A must be "thorough,
probing, [and] in-depth," Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 415 (1971 ), the standard of review is "highly deferential," Northwest
Ecosystem Alliance v. US. Fish and Wildlife Service, 475 F.3d 1136, 1140 (9th
Cir. 2007). The court must presume the agency action is valid and affirm it if a
reasonable basis exists for the decision. Id.
V.
Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure a party is entitled
to summary judgment if it can show that there is no genuine dispute of material
fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56.
Generally, cases involving review of final agency action under the AP A do not
involve fact finding but only a review of the administrative record. Northwest
Motorcycles Ass 'n v. US. Dept ofAgriculture, 18 F.3d 1468, 1472 (9th Cir. 1994).
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Accordingly, summary judgment is the appropriate process to resolve this case.
Discussion
I.
NFMA claims
Plaintiffs claim that the USFS failed to comply with the Forest Plan in two
ways. First, Plaintiffs allege that the Project increases total motorized access route
density via construction of new road segments and converting existing trails to
logging roads. Second, Plaintiffs contend that the Project does not comply with
the 2006 Gallatin National Forest Travel Management Plan (Travel Plan)
standards.
A.
Forest Plan
Plaintiffs allege that the USFS is in violation of the Gallatin National Forest
Plan Amendment 19 (Amendment 19) because the Project would build less than
one-half mile (.46) of new road segments and convert non-motorized trails into
logging roads. Plaintiffs state that building new roads would increase the total
motorized access route density in violation of Amendment 19. Defendants
respond that the Project will not increase the total density within the Bear
Management Subunit where the new temporary roads would be constructed.
Defendants state that the Project will not change the proportion of the subunit
which already has a road density exceeding 2 mi/mP.
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Plaintiffs claim that Amendment 19 requires the Forest Service to adopt
Greater Yellowstone Ecosystem-wide access standards, and in the interim
prohibits increases in open and total motorized access route densities. The AP A
grants the reviewing court only the authority to "compel agency action unlawfully
withheld or unreasonably delayed." 5 U.S.C. § 706(1 ). The USFS has
implemented the access management standards found within the 2003
Conservation Strategy for Grizzly Bear in the Yellowstone Ecosystem. The
Conservation Strategy was adopted as an amendment to the Forest Plan. FS 8161.
Using the Greater Yellowstone Ecosystem Grizzly Bear access Model, the USFS
calculated the changes in total densities resulting from implementation of the
Project. In the area where new temporary roads will be constructed, the total
density currently exceeds 2 mi/mP, which is the unit of measurement used to
categorize grizzly bear habitat. The Project is consistent with the Conservation
Strategy access standards and Plaintiffs have not shown that the USFS has
unlawfully withheld or unreasonably delayed implementation of these standards.
Plaintiffs' NFMA claim regarding the Forest Plan is unsupported.
B.
Travel Plan
Plaintiffs further argue that the Travel plan does not contemplate any
motorized use on the Rendezvous Trail System. Plaintiffs acknowledge that some
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routes provide for administrative use, but claim that the specific routes designated
for the Project were not authorized for motorized use, administrative or otherwise.
Defendants counter that the Travel Plan expressly states that it is not intended to
preclude use of roads or trails for motorized administrative or permitted use,
regardless of whether they are restricted to the public.
The Travel Plan distinguishes public routes from administrative routes.
Administrative use includes USFS employee activity as well as permitted use,
such as motorized use by contractors and permittees. FS7950-55, FS9745,
FS 10994, FS634 7. The Travel Plan, in part, was created to allow the public to
more easily determine which routes are open for travel and which are restricted.
Plaintiffs cite FS9630-31 and FS 10983 to support their argument that the trails are
designated as non-motorized. However, these maps and tables were created for
the public to identify routes open to public use. Administrative routes are
generally not open to the public and so are not necessarily included on Travel Plan
maps and tables. No routes within the Rendezvous Ski Trail System are closed to
administrative or permitted use. Thus, Plaintiffs' claim that the Travel Plan does
not authorize motorized use on the Project area trails is without merit.
Plaintiffs also claim that the Project will cause open motorized access road
density and total motorized access road density values in the Madison subunit #2
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to exceed the density values contemplated in the 2006 Travel Plan Biological
Opinion.
The Travel Plan includes density values for open and total densities at full
implementation. These values were calculated in 2006. Since that time, as the
biological assessment for the Project shows, the USFS has updated those density
values. The updated values reflect use of newer technology, including GIS data,
and incorporates road densities from lands managed by other federal agencies.
The USFS states that the difference in methodologies is responsible for the
differing results, not the result of implementation of the Project. The Court defers
to the USFS 's reasonable, well-supported interpretation of its Travel Plan. Native
Ecosystems Council v. USFS, 418 F .3d 953 (9th Cir. 2005).
II.
NEPA claims
Plaintiffs' first NEPA claim is based on their allegation of a violation of
NFMA. As discussed above, Plaintiffs NFMA claims fail and therefore their
related NEPA claim similarly fails. Plaintiffs' next NEPA claim alleges that
Defendants failed to take a hard look at potential environmental consequences of
the Project. Specifically, Plaintiffs allege that the USFS failed to take a hard look
at project impacts on grizzly bear. The USFS responds that they conducted the
requisite grizzly bear analysis for a categorical exclusion decision memorandum.
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If an agency demonstrates that a proposed action falls within a categorical
exclusion, and the agency reasonably determines that there are no extraordinary
circumstances, then further NEPA documentation is unnecessary. Cal. ex rei.
Lockyer v. USDA, 575 F.3d 999, 1013 (9th Cir. 2009). The USFS determined in
this case that the Project fell within an established categorical exclusion, and the
USFWS agreed. In their reply brief, Plaintiffs for the first time argue that
extraordinary circumstances exist, thus precluding a categorical exclusion
designation. Plaintiffs' also raise a NEPA claim alleging that the USFS failed to
produce a biological assessment of wolverine for public comment. While
Plaintiffs raised an ESA claim regarding the wolverine in their Complaint, the
allegation of a NEPA violation was raised for the first time in Plaintiffs' summary
judgment brief. The Court will not consider any new arguments.
In the biological assessment and the wildlife specialist report, FS563 7-77
and FS5581-88, the USFS analyzed the impacts of roads on grizzly bears. The
reports state that due to the already high motorized access route densities and
associated human use levels, grizzly bear habitat effectiveness is currently low in
the Project area. FS5653. The reports analyzed the total motorized access route
density as well as the open motorized access route density and found that the
Project would not affect either. FS5654. Further, the reports show that the Project
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would not affect grizzly bear secure habitat or grizzly bear food sources. ld.
Defendants are entitled to summary judgment on this claim.
III.
ESA claims
Plaintiffs allege that section 7 of the ESA requires that the USFS initiate
formal consultation on Canada lynx and grizzly bear. The USFS contends that its
conclusion that the Project is not likely to adversely affect lynx and grizzly bears
is not arbitrary, capricious, or in violation of the ESA. Formal consultation,
including preparation of a biological opinion, is required if the agency determines
that a proposed action 'may affect' any listed species or its critical habitat unless
the agency determines through informal consultation, with the written concurrence
of the USFWS, that its action 'is not likely to adversely affect' such species or
habitat. 50 C.F.R. § 402.14(b); 16 U.S.C. 1536(c); 51 Fed. Reg. 19,926, 19,941.
A.
Grizzly bear
Plaintiffs argue that the record can only support a 'likely to adversely affect'
conclusion, thus requiring formal consultation. Plaintiffs cite to the biological
assessment, stating that roads have an adverse effect on grizzly bears and that loss
of habitat negatively impacts grizzly feeding, breeding, sheltering, and traveling.
Plaintiffs emphasize that grizzly bears form negative associations with roads and
learn to avoid the disturbance generated by roads.
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The biological assessment addresses the impact of roads on grizzly bears.
What Plaintiffs fail to note is that the Project would occur exclusively in an area
already cris-crossed by roads, many of which have regular administrative
motorized use. Additionally, the Project area is less than two miles from West
Yellowstone, a heavily used, and populated, area. Temporary roads constructed
for the Project will be in an area where roads and trails already exist. The
biological assessment states that any potential disturbance from the Project would
be minor in comparison to the existing high levels of motorized access and human
use. FS5683. Thus, the effects of the Project on the grizzly bear were determined
to be insignificant and discountable and not likely to adversely affect grizzly
bears. FS5639-77. USFWS agreed with this determination. The record clearly
supports this finding, and Defendants are entitled to summary judgment on this
claim.
B.
Canada lynx
Plaintiffs claim that the USFS must initiate formal consultation for the
Canada lynx based on the contention that 116 acres of affected lynx habitat and 8
acres of affected multistoried habitat creates a demonstrable adverse effect on the
lynx. The Project is in the South Fork Madison lynx analysis unit. The USFS
evaluated the potential effects on lynx pursuant to the Northern Rockies Lynx
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Management Direction Record of Decision and the Terms and Conditions
included in the Biological Opinion. FS5654. The two prevailing standards relate
to maintaining habitat connectivity and providing adequate quantities of lynx and
snowshoe hare habitat.
The biological assessment projects that approximately 116 acres of lynx
habitat will be affected by the Project. FS5659. Of these, eight acres are
snowshoe hare habitat. This would result in a snowshoe hare habitat reduction of
less than one percent and a potential lynx loss of habitat of 0.1 percent. As stated
above, the Project is located in a heavily used area near West Yellowstone. Such
proximity to human activity and roads minimizes the impacts on habitat
connectivity. !d. The record clearly supports the finding that the Project may
affect, but is not likely to adversely affect the Canada lynx. Plaintiffs' claim
therefore fails.
IV.
Administrative appeal
Plaintiffs' final argument is that the USFS wrongfully exempted its decision
notice from the pre-decisional appeal process. The 2014 Farm Bill repealed the
Appeals Reform Act, directing that the pre-decisional objection process shall not
apply to categorically excluded projects under NEPA. Pub. L. No. 113-79 § 8006,
128 Stat. 649 (Feb. 7, 2014). As a result, the USFS no longer offers appeal
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opportunities pursuant to 36 C.F.R. Part 215 for categorically excluded projects.
However, the USFS does continue to provide public involvement opportunities for
categorically excluded projects pursuant to 36 C.F.R. Part 220. In order to
effectuate this change, the USFS accepted and considered all timely-submitted
comments received in response to a legal notice published on or before March 5,
2014. The Project decision Memorandum in this case was signed March 13, 2015.
Defendants are entitled to summary judgment on this claim.
IT IS ORDERED that:
1)
Defendants' motion for summary judgment (Doc. 24) is GRANTED.
2)
Plaintiffs' motion for summary judgment (Doc. 21) is DENIED.
The Clerk of Court is directed to enter judgment in favor of Defendants and
against Plaintiffs. This case is CLOSED.
Dated this
IS~ay of October, 201
Dana L. Christensen, Chief Judge
United States District Court
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