Alliance for the Wild Rockies v. Savage et al
Filing
67
ORDER granting 32 Motion for Summary Judgment; granting 39 Motion for Summary Judgment; denying 16 Motion for Summary Judgment. The Clerk of Court shall enter judgment in favor of Defendants and CLOSE this case. Signed by Judge Dana L. Christensen on 7/19/2016. (ASG, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ALLIANCE FOR THE WILD
ROCKIES,
JUL 19 2016
Clerk, U S District Court
District Of Montana
Missoula
CV 15-54-M-DLC
Plaintiff,
ORDER
vs.
CHRISTOPHER SAVAGE, Kootenai
National Forest Supervisor, FAYE
KRUEGER, Regional Forester of
Region One of the U.S. Forest Service,
UNITED STATES FOREST
SERVICES, an agency of the U.S.
Department of Agriculture, and
UNITED STATES FISH & WILDLIFE
SERVICE, an agency of the U.S.
Department of the Interior,
Defendants.
and
KOOTENAI FOREST
STAKEHOLDER COALITION, a
Montana Corporation, and LINCOLN.
COUNTY, a political subdivision of the
State of Montana,
Defendant-Intervenors.
Before the Court are cross-motions for summary judgment in this
environmental case centered on the East Reservoir Forest Restoration Project
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southeast of Libby, Montana ("the Project"). For the reasons explained below, the
Court grants the motions of Defendants and Defendant-Intervenors and denies
Plaintiffs motion.
BACKGROUND
Hugging the east shore of Lake Koocanusa Reservoir in Montana's
temperate northwest comer, the area encompassed by the Project measures 92,407
acres in size. The United States Forest Service ("Forest Service") manages 85% of
the Project area, with the remaining acreage managed by other federal agencies as
well as state and private interests. The Project area is "heavily roaded from past
management activities," and "has also been heavily logged." (Doc. 1 at 7.)
The Project area is transected by five east-west flowing drainages: Fivemile
Creek, Warland Creek, Cripple Horse Creek, Canyon Creek, and Dunn Creek.
These drainages are deeply incised by their streams and the ridgelines have fairly
gentle slopes. The drainage side slopes are generally steep. The Project area
ranges in elevation from a low of about 2,200 feet along the Kootenai River to
6,051 feet atop Davis Mountain, the head of Fivemile Creek. The south and west
aspects of the Project area have numerous small natural openings in the primarily
ponderosa pine and Douglas fir canopy. The north and east aspects have a nearly
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continuous canopy of Douglas fir, larch, and lodgepole pine. (FS 029267. 1)
Grizzly bear and Canada lynx, both threatened species under the
Endangered Species Act ("BSA"), 16 U.S.C. §§ 1531, 1532(20), are present within
the Project area. Moreover, the Project area contains 18,428 acres of the Tobacco
Bears Outside the Recovery Zone ("BORZ") polygon, one of a number of similar
zones developed by the Forest Service to analyze grizzly bear occurrence outside
of established recovery zones. (FS 005803.). Approximately 30,463 acres of the
total Project area also overlaps with the 55, 789-acre Cripple Lynx Analysis Unit
("LAU"). (FS 005815, 005830.) Bull trout, a threatened fish species under the
BSA, are present in Lake Koocanusa, but not present in the five, previously
described creeks in the Project area. (FS 029281.)
The Project area provides a variety of recreational opportunities, and is very
popular across a broad spectrum of users. Recreation activities are varied and
occur year round. Activities include snowmobiling, hunting, fishing, off-highway
vehicle use, hiking, scenic viewing, wildlife viewing, camping, and gathering of
forest products such as berries and firewood. There are several major rock forms
visible in the Project area, especially along Lake Koocanusa Reservoir, which are
1. Citations to the administrative record will consist of: (1) an "FS" prefix for the Forest
Service portion of the record, or an "FWS" prefix for the United States Fish & Wildlife Service
portion; and (2) the page number in the particular record.
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popular with climbers. (Id.)
The Project area is relatively devoid of residential development other than
scattered inholdings. There is a commercial resort and marina on the west side of
the Project area where Cripple Horse Creek enters Lake Koocanusa. The southern
third of the Project area is bisected by a high-voltage electrical transmission line
located in an approximately 150 to 200 foot wide right-of-way. The transmission
line disperses power generated at the Libby Dam to regional markets, including
Kalispell, Whitefish, Libby, and communities surrounding Flathead Lake. There
is a significant associated transformer facility located at the southwest comer of
the Project area, within the Project area. Montana Highway 37 and Lake
Koocanusa form the western boundary of the Project area.
The Project is the result of over four years of planning and input, and
numerous groups and.governmental units took part in shaping the final
implementation plan. On October 27, 2014, Defendant Christopher Savage,
Kootenai National Forest Supervisor, signed the Record of Decision ("ROD")
announcing that the Forest Service would implement Alternative 2 from the
Project Final Environmental Impact Statement ("FEIS"), with modifications.
The ROD describes the following vegetation management activities: (1)
timber harvest and associated fuel treatment on approximately 8,845 acres
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dispersed over the Project area, including intermediate harvest on approximately
5,387 acres and regeneration harvest on approximately 3,458 acres; (2)
precommercial thinning on approximately 5,775 acres; (3) planting conifer
seedlings on approximately 3,346 acres; (4) prescribed fire treatments on
approximately 4,257 acres to reduce hazardous fuel loading; and (5) burning
and/or slashing on approximately 10,049 acres to enhance wildlife habitat. (FS
029259-60.)
The ROD also describes the following road and access-related management
activities: (1) maintenance to 176.4 miles of haul roads prior to and through the
duration of timber harvesting activities; (2) construction of approximately 9.25
miles of new roads and 4.26 miles of temporary roads to accomplish harvest
activities; (3) access changes from seasonal to year-long, open access on
approximately 1. 79 miles of road; (4) access changes from motorized to nonmotorized on five trails totaling 27 miles; (5) watershed rehabilitation, including
decommissioning 5.93 miles of road and storing approximately 16 miles of road;
(6) adding approximately 13 miles of "undetermined" roads to the National Forest
System Road System ("NFSRS"), while decommissioning another 6.24 miles of
"undetermined" roads; and (7) creating a 2. 75 mile non-motorized loop trail
between Lake Koocanusa and Montana Highway 3 7 near the mouth of Cripple
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Horse Creek. (FS 029260.)
Plaintiff filed its Complaint in this case on May 11, 2015, alleging the
following five claims for relief: (1) the Project proposes a net increase in road
density within the Tobacco BORZ, in violation of the Forest Plan Amendments for
Motorized Access Management within the Selkirk and Cabinet-Yaak Grizzly Bear
Recovery Zones on the Kootenai, Lolo, and Idaho Panhandle National Forests
("Access Amendments"), and consequently will result in unpermitted take of
grizzly bears; (2) regarding lynx, the Project fails to comply with the Northern
Rockies Lynx Management Direction ("Lynx Amendment"), and in any event, the
Forest Service cannot rely on the Lynx Amendment in the analysis of any project
until reconsultation with the United States Fish & Wildlife Service ("Fish &
Wildlife Service") has occurred; (3) the Forest Service erred both in concluding
that the Project would have no effect on bull trout, and in failing to include bull
trout in its biological assessment for the Project; (4) the Forest Service failed to
conduct an analysis discussing the cumulative effects of past, present, and
reasonably foreseeable amendments to the Kootenai National Forest Plan; and (5)
the Fore st Service's road density analysis is inadequate and misleading. (Doc. 1 at
22-30.) Plaintiff withdrew the fourth claim in its combined reply and response to
Defendants' cross-motion for summary judgment. (Doc. 48 at 18.) The Court
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held a hearing on the parties' cross-motions on April 19, 2016.
LEGAL STANDARD
I.
Summary Judgment
A party is entitled to summary judgment if it can demonstrate that 'there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is warranted where
the documentary evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Only disputes over
facts that might affect the outcome of the lawsuit will preclude entry of summary
judgment; factual disputes that are irrelevant or unnecessary to the outcome are
not considered. Id. at 248. "[S]ummary judgment is an appropriate mechanism for
deciding the legal question of whether [an] agency could reasonably have found
the facts as it did" based upon the "evidence in the administrative record." City &
Cnty. ofSan Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 1997)
(citations omitted).
II.
Administrative Procedure Act
Courts review claims regarding the ESA under the Administrative
Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. See Native Ecosystems Council v.
Dombeck, 304 F 3d 886, 891 (9th Cir. 2002). Under the APA, a "reviewing court
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shall hold unlawful and set aside agency action ... found to be ... arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law."
5 U.S.C. § 706(2)(A). The Court's scope of review is narrow, and the Court
should "not substitute its judgment for that of the agency." Motor Vehicle Mfrs.
Ass 'n of US., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A
decision is arbitrary and capricious:
only if the agency relied on factors Congress did not
intend it to consider, entirely failed to consider an
important aspect of the problem, or offered an
explanation that runs counter to the evidence before the
agency or is so implausible that it could not be ascribed
to a difference in view or the product of agency
expertise.
Gardner v. US. Bureau ofLand Mgmt., 638 F3d 1217, 1224 (9th Cir. 2011). An
agency's actions are valid if it "considered the relevant factors and articulated a
rational connection between the facts found and the choices made." Id. (internal
quotation marks omitted). If the record supports the agency's decision, that
decision should be upheld even if the record could support alternative findings.
Arkansas v. Oklahoma, 503 U.S. 91, 112-113 (1992). Review of the agency's
action is "highly deferential, presuming the agency action to be valid."
Buckingham v. Sec '.Y of US. Dep 't ofAgric., 603 F .3 d 1073, 1080 (9th Cir. 2010 ).
However, this presumption does not require courts to "rubber stamp"
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administrative decisions "they deem inconsistent with a statutory mandate or that
frustrate the congressional policy underlying a statute." Bureau ofAlcohol,
Tobacco & Firearms v. Fed. Labor Relations Auth., 464 U.S. 89, 97 (1983)
(internal quotation marks omitted). Judicial review under the APA is "narrow but
searching and careful," and courts need not uphold agency actions where "there
has been a clear error of judgment." Gifford Pinchot Task Force v. US. Fish &
Wildlife Serv., 378 F.3d 1059, 1065 (9th Cir. 2004) (citations and internal
quotation marks omitted).
ANALYSIS
I.
Applicable laws
A.
ESA
Section 7 of the BSA 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,
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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)(l); 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)(l); 50 C.F.R. §§ 402.12 (f), 402.14(a), (b)(l); 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.
§ 402.120). "If [the Fish & Wildlife Service] advises that no listed species or
critical habitat may be present, the [Forest Service] 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.,
681F.3d1006, 1027 (9th Cir. 2012). Generally, "the minimum threshold for an
agency action to trigger consultation with the [Fish&] Wildlife Service is low."
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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. ofAgric., 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 Fish & Wildlife Service concurs in writing. 50 C.F .R.
§§ 402.120)-(k), 402.14(b)(l), 402.13(a).
Section 9 of the ESA prohibits "take" of any listed species. 16 U.S.C.
§ 1538(a)(l)(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
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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.
§ 402.14(i)( 5).
B.
NEPA
"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
environmental impact of a proposed action." Baltimore Gas & Elec. Co. v. Natural
Res. Def Council, 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.
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An agency may comply with NEPA 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.
"NEPA requires the preparation of an EIS for 'major
Federal actions significantly affecting the quality of the human environment."'
Cascadia Wild/ands v. Bureau ofIndian Aff., 801 F.3d 1105, 1111 (9th Cir. 2015)
(citing 42 U.S.C. § 4332(2)(C)).
While courts must "strictly interpret the procedural requirements in NEPA
and the CEQ regulations," Churchill Cnty. 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
Wild/ands Ctr. v. Bureau ofLand Mgmt., 387 F.3d 989, 993 (9th Cir. 2004)
(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).
C.
NFMA
NFMA requires National Forest planning at two levels: the forest level and
the individual project level. 16 U.S.C. § 1604. At the forest level, NFMA directs
the Department of Agriculture to "develop, maintain, and, as appropriate, revise
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[forest plans] for units of the National Forest System." 16 U.S.C. § 1604(a). A
Fore st 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 ofAgric., 341F.3d961, 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 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)(1 ).
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 Reg'l Educ. Project v. US.
Forest Serv., 565 F.3d 545, 554-55 (9th Cir. 2009); Forest Guardians v. US.
Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003).
II.
Plaintiff's claims
At the outset, the Court will address Defendants' contention that several of
the claims in the Complaint are waived due to Plaintiffs failure to raise the
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particular issues in the administrative setting. While the Court recognizes the vital
role of the administrative process when it comes to projects such as this and would
hope that all stakeholders would meaningfully participate in the process, which
hopefully will lead to efficient use of government resources, the Court will address
the merits of Plaintiffs claims in this instance, where the waiver argument rests on
the government's assessment of whether Plaintiffs comments during the decisionmaking process were specific and detailed enough. (See e.g. Doc. 33 at 13
("While Plaintiffs voluminous comments may have addressed roads generally and
included a complaint that the Access Amendments violate the law, ... Plaintiff
never articulated the specific concerns raised here").) If there is room for
reasonable disagreement as to whether Plaintiff exhausted administrative remedies
before filing its Complaint, then the Court prefers to address the merits of the
substantive claims.
The Court will address Plaintiffs claims in the order in which they were
presented in Plaintiffs opening brief. Ultimately, none of the claims warrant the
relief Plaintiff requests, and Defendants are entitled to summary judgment in this
case.
A.
Bull trout
Plaintiff contends that the Forest Service erred with respect to bull trout by:
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(1) failing to include the species in the biological assessment for the Project,
despite the alleged fact that bull trout "may be present" in the Project area; and (2)
concluding that the Project would have "no effect" on bull trout. The Forest
Service counters that, in the complete absence of evidence showing that bull trout
exist within the Project area, it was neither arbitrary nor capricious to conclude
that the Project would have no effect on bull trout. The record supports the Forest
Service on this claim.
As to the first part of Plaintiffs claim, the Forest Service must include in its
biological assessment for the Project only those threatened or endangered species
identified by the Fish & Wildlife Service which "may be present in the area of such
proposed action." 16 U.S.C. § 1536(c){l). The record indicates that the Forest
Service obtained a "current species list for the Kootenai National Forest" from the
Fish & Wildlife Service on three separate occasions in 2012 and 2013, and that the
Fish & Wildlife Service subsequently "concurred with potential listed species
distribution maps and resulting consultation areas." (FS 005802.) The list did not
include bull trout, and so the Forest Service did not include bull trout in the
biological assessment for the Project. Thus, even assuming bull trout were
erroneously omitted from the biological assessment, the error would lie with the
Fish & Wildlife Service, not with the Forest Service. Plaintiff does not challenge
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the species list provided by the Fish & Wildlife Service for the Project.
As to the second part of Plaintiffs claim, the Forest Service's conclusion
that the Project will have no effect on bull trout can only be overturned ifthe
Forest Service had "reason to believe that [bull trout] may be present in the area
affected by [the] project and that implementation of [the Project] will likely affect
[bull trout]." 16 U.S.C. § 1536(a)(3); see also 50 C.F.R. § 402.14(b)(l); Karuk
Tribe of Cal., 681 F.3d at 1027 ("An agency may avoid the [ESA's] consultation
requirement only if it determines that its action will have 'no effect' on a listed
species or critical habitat.") (citations omitted). As referenced above, the Fish &
Wildlife Service did not indicate that bull trout were present in the Project area,
and the agency's silence in this regard is expected given the evidence in the
record. It is undisputed that bull trout exist in Lake Koocanusa, but electro-fishing
records from creeks within the Project area indicate that no bull trout are found
within them2-the five main creeks within the Project area simply lack the
characteristic gradient, temperature, and streambed composition of bull trout
habitat. (FS 029409-10.) Moreover, given the size of Lake Koocanusa and the
sediment discharge into the reservoir as a result of the Project, the Forest Service's
2. At the motions hearing the parties agreed that the code "ht" in the electro-fishing data
in the record (FS 002491-99), refers to non-native brook trout, not to bull trout as originally
argued by Plaintiff in its brief.
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conclusion that the Project would have no measurable effect on bull trout within
the larger body of water was reasonable. The Forest Service summarized its
findings with the respect to bull trout in the draft environment impact statement
("DEIS") as follows:
Bull Trout are known from Lake Koocanusa. The fish in
the reservoir are migratory and move into streams for
spawning and rearing primarily in the Elk River, Canada.
Fivemile Creek in the analysis area has mention of bull
trout use which is anecdotal and from past professional
judgment and [personal] communications. However,
during numerous electrofishing surveys by Libby Ranger
District personnel and [the Fish & Wildlife Service],
only large numbers of brook trout (and a few rainbows)
were found in the perennial segment of the stream. Any
use of the drainage for spawning by bull trout would
result in hybrid fish and the lack of actual evidence of
bull trout in the drainage leads to the conclusion that bull
trout do not use the drainage for spawning and rearing.
An occasional fish may migrate into the system but
conditions for bull trout in the drainage do not contain
suitable habitat. Therefore, for this document, bull trout
will not be considered present in tributary streams and
not affected by the proposed project.
(FS 001297.) These conclusions are supported by the record and within the Forest
Service's discretion. Accordingly, Plaintiffs motion for summary judgment with
respect to this claim will be denied, and Defendants' motion will be granted.
B.
Grizzly bear
Plaintiff makes three interrelated arguments with respect to the grizzly bear.
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First, Plaintiff alleges that the Project violates the Access Amendments because it
results in a net increase of 4.15 linear miles of road within the Tobacco BORZ.
Second, Plaintiff alleges that the Forest Service's failure to recognize this net
increase renders erroneous its and the Fish & Wildlife Service's conclusion that
the Project is not likely to adversely affect grizzly bear. Third, Plaintiff alleges
that the unacknowledged increase in linear road miles will result in take beyond
'
that permitted in the Access Amendments, pursuant to 16 U.S.C. § 1539(a)(l)(B).
Defendants counter that Plaintiffs tiered argument rests on incorrect math, and
that the Project in fact decreases linear road miles within the Tobacco BORZ by
three-tenths of a mile. The Court agrees with Defendants that the Project does not
result in the purported increase. Moreover, because this conclusion obviates
Plaintiffs second and third sub-arguments, the Court will grant summary
judgment in Defendants' favor on this claim.
Recognizing that "controlling and directing motorized access is one of the
most important tools in achieving habitat effectiveness and managing grizzly bear
recovery," and "that existing forest plans may not [have] provide[d] sufficient
direction for the management of roads," the Forest Service developed the Access
Amendments in 2011 in concert with the Interagency Grizzly Bear Committee.
(FS 027704.) The Access Amendments modified the Kootenai National Forest
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...
Plan, and thus influence the grizzly bear analysis associated with the Project.
The Access Amendments created the Tobacco BORZ and six other similar
regions, measuring in size from 33,869 to 287,240 acres, for the purpose of
monitoring areas outside designated recovery zones which nevertheless saw
"recurring" grizzly bear use. (FS 027488.) The Access Amendments contained
the following provision pertinent to the seven BORZ:
The Forests shall ensure no increases in permanent linear
miles of open road on National Forest System lands in
any individual BORZ, above the baseline conditions
identified in [the Access Amendments Biological
Opinion] . . . . Potential increases in linear miles of open
roads must be compensated for with in-kind reductions
in linear miles of open road concurrently with, or prior
to, project implementation within the same BORZ.
(FS 027486.) Baseline conditions for the Tobacco BORZ included 1,123.9 total
linear miles of roads and
867~0
total linear miles of open roads "on National Forest
System Lands." (FS 027488.)
Central to resolving Plaintiffs argument on this claim is the issue of
whether the Access Amendments baseline conditions, as applied to the Project
area, include so-called "undetermined" roads present in this part of the Kootenai
National Forest. In the DEIS, the Forest Service noted that it had inventoried
approximately 20 miles of undetermined roads in the Project area. (FS
001586-87.) Undetermined roads are those "for which the purpose and need was
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undetermined," and which "cross [National Forest System] lands, but for various
reasons, had never been included as a part of the [NFSRS]." (FS 001589.)
Given this definition and the language of the DEIS, Plaintiff claims that the
Access Amendments baseline for the Tobacco BORZ did not account for
undetermined roads, and that treating them as part of the baseline amounts to an
end tun around the prohibition on increasing linear road miles within a BORZ.
Plaintiff contends that any undetermined roads slated to be included in the NFSRS
as a result of the Project must therefore be counted as new roads. Thus, Plaintiff
calculates a 4.15-mile increase in linear road miles within the Tobacco BORZ by
adding 2.2 miles of newly constructed roads to 2.6 miles of undetermined roads to
be included in the system, then subtracting .65 miles of system roads to be
decommissioned.
Defendants counter that the Access Amendments baseline included
undetermined roads in this area, and thus calculate a 0.3-mile decrease in linear
road miles within the Tobacco BORZ by subtracting 2.5 miles of both system
roads and undetermined roads planned for decommissioning from the 2.2 miles of
new roads to be built pursuant to the Project. As to the 2.6 miles of undetermined
roads to be added to the NFSRS, the Forest Service argues that the change in
status does not render the undetermined roads "new" for accounting
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purposes-the undetermined roads were already included in the baseline.
Though circumstantial, several pieces of evidence in the record support the
conclusion that the baseline included the undetermined roads at the heart of the
parties' discrepancy. First, as Defendant-Intervenors' counsel pointed out at the
motions hearing, both the DEIS and FEIS describe undetermined roads within the
Project area using road identification numbers. (See e.g. FS 001178-79; 029375.)
This certainly suggests that the Forest Service was aware of these roads prior to
cataloguing Project-related roads, and belies Plaintiffs contention that
undetermined roads are "unauthorized" and "user-created." (Doc. 17 at 15.)
Indeed, the Forest Service defines an "unauthorized road" as "a road ... that is not
a forest road ... and that is not included in a forest transportation atlas." 36
C.F.R. § 212.1. The undetermined roads in the Project area are both "forest
roads," that is, they are "wholly ... within ... and serving the National Forest
System" and have been deemed "necessary for the protection, administration, and
utilization of the National Forest System and the use and development of its
resources," and "included in a forest transportation atlas," as evidenced by maps in
the ROD. Id.
Second, and dovetailing with the notion that the Forest Service was aware
of the presence of undetermined roads within the Project area and the Tobacco
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BORZ, the Access Amendments describe baseline linear miles of roads occurring
"on National Forest System Lands." (FS 027488.) This phrasing suggests that the
baseline accounted for all roads on National Forest System lands within the seven
BORZ, not just NFSRS roads.
Third, more than one source in the record references undetermined roads in
a context which suggests that "undetermined" is an ownership or access-type
status code. For example, the Project Travel Analysis Report contains a table
listing the number of miles of existing roads of six different "management or
ownership" categories within the Project area. (FS 008169.) The categories
include "undetermined" roads, as well as roads administered by the Montana
Department of Transportation, U.S. Army Corps of Engineers, Montana
Department of Natural Resources Conservation, and private interests and
companies. (Id.) Additionally, the DEIS lists the specific undetermined roads
proposed to be added to the system through the Project, and lists the reasons why
each road segment is significant. (FS 001168.) Once the roads are added, they
will be assigned a system status code similar to roads already included in the
system. The codes generally indicate the time of year during which access is
permitted, and the type of access-motorized, non-motorized-permitted. (FS
001164-67.) These references in the Travel Analysis Report and DEIS indicate
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that "undetermined" is likely a term of art or defined term in the universe of Fore st
Service transportation analysis, rather than a one-off means of describing scofflaw
roads within this particular Project.
Ultimately, in light of the record evidence on this issue, the Court cannot
say that the Forest Service's consideration of undetermined roads within the
Tobacco BORZ is "plainly erroneous or inconsistent with the directive[s]"
contained within the Kootenai National Forest Plan and the Access Amendments.
Siskiyou Reg'! Educ. Project, 565 F.3d at 555. The circumstantial evidence is
consistent and compelling. Thus, the Court finds that Plaintiffs contention
regarding a net increase in linear road miles is without merit, and consequently
will grant Defendants' motion for summary judgment on the entirety of this claim.
C.
Canada lynx
Similar to the grizzly bear analysis, Plaintiffs arguments with respect to
lynx are threefold, though in this instance each argument stands on its own. First,
Plaintiff contends that the Forest Service must reinitiate consultation with the Fish
& Wildlife Service regarding lynx critical habitat before proceeding with any
logging-related project within that habitat, thereby halting all projects until reconsultation occurs. Second, Plaintiff argues that the Forest Service's conclusion
that the Project is "not likely to adversely affect" lynx is arbitrary and capricious.
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Third, Plaintiff claims that the Forest Service has not complied with the ALL S 1
habitat connectivity standard in the Lynx Amendment. The Court will address
each basis in tum.
1.
Reinitiating consultation before Project implementation
Plaintiffs argument with respect to reinitiating consultation stems from the
Ninth Circuit's recent holding in Cottonwood Environmental Law Center v. U.S.
Forest Service, 789 F.3d 1075 (9th Cir. 2015), which considered this Court's order
in Salix v. U.S. Forest Service, 944 F. Supp. 2d 984 (D. Mont. 2013).
In Salix, this Court determined that the designation of critical habitat
triggers the need for reinitiation of consultation under Section 7(a)(2) of the BSA,
and that when the Fish & Wildlife Service designated lynx critical habitat in 2009,
the Forest Service was required to reinitiate consultation on the Lynx Amendment.
944 F. Supp. 2d at 999-1000. Therefore, "[a] project affecting lynx or lynx
critical habitat will be enjoined if its approval is contingent on an analysis that is
'inextricably intertwined and inescapable of separation' from a reliance on the
standards set forth in the Lynx Amendment, because such project's approval is
dependent on an underlying BSA violation." Native Ecosystems Council v.
Krueger, 2014 WL 9954189, at *7 (D. Mont. June 4, 2014) (citing Alliance for the
Wild Rockies v. Krueger, 950 F. Supp. 2d 1196, 1206-07 (D. Mont. 2013)
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[hereinafter, Alliance v. Krueger]). Nevertheless, this Court has also held that "a
project affecting lynx or lynx critical habitat may be appropriately and reasonably
approved even ifthe [Forest Service's and Fish & Wildlife Service's] analysis
mentions or relies in part on the Lynx Amendment, so long as the agencies'
analysis also contains a reasonable independent basis for its conclusions with
respect to effects on lynx and lynx critical habitat." Id. (citations omitted).
"Agencies may show an independent basis for their conclusions regarding lynx
critical habitat by demonstrating that 'the affected critical habitat will remain
functional and that the primary constituent elements for critical habitat will not be
altered to an extent that appreciably reduces the conservation value of the critical
habitat, and neither the recovery nor the survival of the species will be
jeopardized."' Id. (citing Alliance for the Wild Rockies v. Weber, 2013 WL
5844447, at* 15 (D. Mont. Oct. 30, 2013) [hereinafter, Alliance v. Weber]).
In Cottonwood, the Ninth Circuit reviewed this Court's determinations in
Salix pertaining to the plaintiffs standing, whether the case was ripe, and whether
the Fish & Wildlife Service's revised lynx critical habitat designation triggered the
need for the Forest Service to reinitiate ESA consultation on the Lynx
Amendment. 789 F.3d at 1077. On appeal, the government argued thatthe
plaintiff lacked standing to challenge consultation on the Lynx Amendment
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because it constituted a programmatic agency action without any direct, projectrelated injury to the plaintiffs individual members. Id. at 1079. Furthermore, the
government argued that "because there was Section 7 consultation on [the]
individual projects [at issue in the case] after the revised critical habitat
designation, and because there was a determination that the projects would not
have an adverse impact on lynx critical habitat, no injury resulted from the failure
to reinitiate consultation on the Lynx Amendment[]." Id. at 1082. The court
dismissed the government's standing arguments, noting that "even though
individual projects may trigger additional Section 7 scrutiny, that scrutiny is
dependent, in large part, on the Lynx Amendment[] and the 2007 [Biological
Opinion] that were completed before critical habitat was designated on National
Forest land," and that "project-specific consultations do not include a unit-wide
analysis comparable in scope and scale to consultation at the programmatic level."
Id.
Plaintiff seizes on this language as an indication by the Ninth Circuit that
this Court's practice of accepting project-specific lynx critical habitat analyses if
they stand independently from the Lynx Amendment is erroneous. For several
reasons, the Court disagrees. First, the Cottonwood court's language regarding
why a project-specific critical habitat analysis is insufficient is stated in the
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abstract-the court did not squarely address this Court's rationale as to why such
an analysis might be sufficient, but instead indicated that, categorically, a projectspecific analysis does not eviscerate a plaintiffs Article III standing with respect
to programmatic challenges. Put another way, the court did not comment on the
merits of this Court's approach, but merely on why the government's standing
argument in that case failed. Second, the final line of Judge Pregerson's partial
dissent in Cottonwood-stating that he "would grant the Appellant's request for
an injunction [of the projects at issue] pending compliance with the ESA's Section
7 consultation requirements"-plainly indicates what the panel majority was not
saying in its opinion. 789 F.3d at 1095 (Pregerson, J., dissenting). If the majority
concluded that all projects should be enjoined pending the reinitiation of
consultation, a dramatic step indeed, then certainly there would have been no need
for Judge Pregerson to advocate for it in his dissent. Third, the government has
filed a petition for writ of certiorari with the United States Supreme Court with
regard to Cottonwood, which in tum led the Ninth Circuit to vacate submission of
Alliance v. Krueger-the first case in which this Court articulated the abovedescribed practice Plaintiff challenges here-on May 17, 2016. See Alliance for
the Wild Rockies, et al. v. Christensen, et al., No. 14-35123, Doc. 50 (9th Cir. May
17, 2016). The Ninth Circuit will more squarely address this issue in its opinion in
-28-
Alliance v. Krueger, and the undersigned will await a more direct answer before
abandoning what has now become the analytical framework in cases involving
timber projects in lynx habitat. 3
Based on the foregoing, the Court concludes that Cottonwood does not
present a per se rule prohibiting timber projects from proceeding pending the
Forest Service and Fish & Wildlife Service reinitiating consultation on the Lynx
Amendment. Consequently, the Court will deny Plaintiffs motion for summary
judgment on this point, and maintain its consistent approach on this issue.
2.
"Not likely to adversely affect" determination
Plaintiff articulates a two-part argument regarding the determination of the
Forest Service and the Fish & Wildlife Service that the Project is "not likely to
adversely affect" the lynx4 • First, Plaintiff contends that the agencies'
determination is necessarily arbitrary and capricious because it relied too heavily
on the Lynx Amendment-a poipt related to the discussion immediately above.
Second, Plaintiff claims that the agencies' determination was arbitrary and
3. The approach is straightforward. If the lynx analysis relies solely on the Lynx
Amendment, the case is remanded for further consultation. See Salix v. US. Forest Service, 944
F. Supp. 2d 984 (D. Mont. 2013); Alliance v. Krueger, 950 F. Supp. 2d 1196 (D. Mont. 2013).
4. The Court will not consider Plaintiffs argument that timber harvest necessarily
adversely affects lynx. (See Doc. 17 at 27-28.) There is no question that the Forest Service is
capable of tailoring projects such that timber harvest does not adversely impact wildlife-to hold
otherwise would be to undercut, in part, the agency's statutory mandate.
-29-
capricious because the Project allegedly fragments and degrades mature and old
growth forest, and because it will result in the "removal" of fourteen areas known
to provide movement corridors for wildlife. (Doc. 17 at 28.) Defendants counter
that the agencies' consulted as to the Project's effects upon the primary constituent
element ("PCE") of lynx habitat, and so satisfied the Alliance v. Krueger
"reasonable independent basis" standard. Defendants also counter that old growth
and mature forest activities will not impact lynx critical habitat, and that none of
the referenced movement corridors are actually identified linkage corridors. The
record supports Defendants on these issues.
In its 2009 rule delineating lynx critical habitat in the United States, the Fish
& Wildlife Service identified the lynx PCE as "boreal forest landscapes supporting
a mosaic of differing successional forest stages, containing the following
subelements: snowshoe hares and their preferred habitat, adequate winter snow
conditions, denning habitat with abundant coarse woody debris, and 'matrix'
habitat which facilitates lynx movement and dispersal and connects areas of
suitable habitat." (FS 005813.) The Forest Service considered each one of the
PCE sub-elements in table form in the biological assessment for the Project (FS
005819), and analyzed the PCE in significantly greater detail in the FEIS. (FS
029367-70.) Notably, as to the first and fourth sub-elements, the Forest Service
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modified the Project so that "[m]ature multistory and young forests that provide
habitat conditions preferred by snowshoe hares [would not be] treated," and
confined treatment of matrix habitat to "the lower elevation boundary of the
LAU." (FS 029368, 029370.) Thus, with respect to the first part of Plaintiffs
claim here, the Forest Service has demonstrated that "the affected critical habitat
will remain functional and that the primary constituent elements for critical habitat
will not be altered to an extent that appreciably reduces the conservation value of
the critical habitat, and neither the recovery nor the survival of the species will be
jeopardized." Alliance v. Weber, 2013 WL 5844447, at *15.
The Forest Service has also demonstrated minimal Project effects upon old
growth and mature forest sections. As to old growth, the Forest Service stated the
following in the ROD:
Concern regarding the impact to old growth stands is
addressed by dropping proposed vegetation treatments in
old growth. Alternative 2 with modifications maintains
fuel treatments ( 173 acres) in some old growth such as
on dry land types. The purpose of prescribed fire in old
growth, as identified in the forest plan, is to maintain old
growth characteristics. These proposed treatments will
occur in dry land old growth such as south aspects of dry
habitats. Treatments to be implemented are designed to
reduce ladder fuels through a combination of slashing
and prescribed burning. Reducing ladder and surface
fuels will maintain or enhance some of the dry land old
growth attributes and help ensure the survivability of the
older, large diameter trees in these individual stands.
-31-
The overall goal is to work towards returning these
stands to their appropriate fire regime and increased fire
resiliency.
(FS 029264.) While Plaintiff correctly cites Squires et al. (2010) for the
proposition that lynx prefer more mature stands during winter, the authors of that
study also noted that lynx in Montana "selected mature, multistoried forests ...
composed of mixed conifers that included lodgepole pine, Douglas-fir, and
western larch, but predominately consisted of Englemann spruce and subalpine fir
in the overstory and midstory." (FS 029091.) This preference is consistent with a
wetter, higher elevation mixed stand, and thus the old growth treatments proposed
with the Project-prescribed fire in south-aspect dryland types-will not affect
preferred lynx winter habitat.
Moreover, as to Plaintiffs contention that "the Project allows for
clearcutting of 1,269 acres of mature boreal forest," the Forest Service concluded
in the biological assessment that the acreage consisted of "general mature, stemexclusion habitat within the LAU which may serve in the same capacity as
'matrix' habitat," but that "[d]ue to the scattered and random nature of the
proposed treatment units and that only 1,269 acres (4.2%) out of30,463 LAU
acres would be treated, effects to the juxtaposition of boreal and matrix habitat
-32-
would be minimal 5 ." (FS 005819.) The Forest Service only proposed to include
these stands in the treatment acreage because, upon field verification, it became
clear that the areas were not of a multi-story or stand initiation character. (FS
005815.) Contrary to the suggestion that the Forest Service intends to harvest a
nearly 1,3 00 acre swath of mature forest, the record indicates that the agency
carefully considered whether to treat these forest sections, and decided to do so
only after determining-with the concurrence of the Fish & Wildlife Service-that
the section did not square with the PCE.
Finally, as to Plaintiffs claim that the Project will remove wildlife
movement corridors, the record is clear that "[t]here are no identified linkage
corridors ... in the [Project area] or potentially impacted LAUs or adjacent
LAUs" (FS 005815 (emphasis added)), and nevertheless, as discussed below, the
Project complies with the Lynx Amendment ALL S 1 connectivity standard.
Based on the foregoing, the Forest Service and Fish & Wildlife Service
reasonably determined that the Project was "not likely to adversely affect" the
lynx. See 50 C.F.R. § 402.13; Conservation Congress v. Finley, 774 F.3d 611,
615 (9th Cir. 2014). The Court will deny Plaintiffs motion for summary judgment
and grant Defendants' motion on this ground.
5. Not only are the proposed clearcut units scattered, but four of the seven units overlap
with the powerline right-of-way in the southern third of the Project area. (FS 029356.)
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3.
Compliance with the Lynx Amendment's ALL Sl standard
Plaintiffs final lynx-related claim-that the Project fails to comply with the
Lynx Amendment's ALL SI habitat connectivity standard-is essentially
answered by the Court's analysis regarding the agencies' "not likely to adversely
affect" determination. The record demonstrates that the amount and distribution
of treatment activities in lynx habitat does not run afoul of the standard's mandate.
The Lynx Amendment accounts for lynx habitat connectivity through the
ALL SI 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." (FWS OOI072 (emphasis added).)
To "maintain" according to the Lynx Amendment "means to provide enough lynx
habitat to conserve lynx ... [i]t does not mean to keep the status quo." (FWS
OOI083.) The Lynx Amendment further defines "habitat connectivity" as
"consist[ing] of an adequate amount of vegetative cover arranged in a way that
allows lynx to move around." (FWS OOI082.) 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.)
Simply stated, the Project will leave more than enough lynx habitat intact
following harvest activities to both conserve lynx and permit lynx to move
-34-
through the area. (See FS 001604; 001612-13.) Because there are no linkage
areas within the Project area or immediately surrounding it (FS 001497), the
question here is whether connectivity is maintained within the Cripple LAU. The
Fish & Wildlife Service confirmed as much through informal consultation (FWS
000004), and the record makes clear that the Forest Service engaged in a unit-byunit lynx habitat analysis during preparation of the DEIS. (FS 005955-56.)
Because the Forest Service complied with the Lynx Amendment's ALL SI
standard, the Court will grant Defendants' motion for summary judgment on this
issue.
D.
Wildlife security, roads, and trails
Finally, Plaintiff contends that the Forest Service's analysis with respect to
trail and road closures, and the agency's subsequent representation regarding
increased wildlife security, is misleading and in violation ofNEPA. Specifically,
Plaintiff argues that the Forest Service: ( 1) misrepresented the total linear miles of
trails slated for closure, because the particular trails at issue had been closed
through previous timber sale projects; (2) improperly concluded that adding
undetermined roads to the NFSRS would not result in increased road density; and
(3) failed to disclose the fact that it planned to re-categorize approximately 27
miles of "decommissioned" roads to "intermittent stored service" roads.
-35-
Defendants counter that the decision documents adequately disclosed the Fore st
Service's treatment of these issues, and so the agency complied with NEPA. The
Court agrees with Defendants on these issues.
As to the first sub-argument, Plaintiff cites a record document entitled
"TRAILS OPEN TO MOTORIZED WITHIN THE CRIPPLE PSU" to support its
contention that much of the trail system in the Project area, which the Forest
Service now claims to be closing to motorized use, has been closed for years via
previous timber projects. (FS 000617-23 [hereinafter, "motorized trail
summary"].) The Project will leave open 9.5 miles of the total 36.5 miles of
motorized trails in the Project area for purposes of developing the Boundary
Mountain Loop Trial. (FS 029261.) The remaining 27 miles will be re-designated
"non-motorized." (Id.) The motorized trail summary discusses all of the trail
segments in the Project area, and appears to indicate that previous project
environmental assessments and decision notices had analyzed the segments as
non-motorized. (FS 000620-23.) Plaintiff thus argues that leaving open a 9.5
mile motorized trail is actually akin to adding the trail-since the Fore st Service
had previously considered all 36.5 miles of trail non-motorized-and that the
Forest Service's failure to explain this situation constitutes a NEPA violation. The
Court disagrees. The fact that previous project analyses concluded, to the extent
-36-
they even did so, that the trails should have been closed to motorized use earlier
does not render insufficient the Forest Service's indication in the Project DEIS
that the trails will be closed to motorized use now and going forward. The bottom
line is that somehow the trail segments were never officially closed to motorized
access, the Forest Service discovered the error and concluded that they should be
restricted to non-motorized access, and ultimately indicated as much in the DEIS
and Project Travel Analysis Report. (FS 001591; 008176.)
As to the second sub-argument, the Court's earlier analysis regarding
undetermined roads in the Tobacco BORZ answers the question of whether the
Forest Service failed to disclose an increase in road density Project-wide-the
Court has found that undetermined roads were part of the Project baseline road
density, which means that including undetermined roads now does not increase
density. Moreover, Plaintiffs contention that the Forest Service failed to define
"undetermined road" is without merit. The DEIS clearly described what
undetermined roads are, why they are proposed for addition to the NFSRS, and the
benefits of doing so. (FS 001589; 001591.)
Finally, as to the third sub-argument, Plaintiffs contention that the Forest
Service failed to disclose its re-categorization of 27 miles of Project-area roads
from "decommissioned" to "intermittent stored service" appears to be unfounded.
-37-
While record documents show that Forest Service transportation personnel
discovered the classification error and acknowledged that re-categorizing the
roads would result in increased road density in the Project area, the Forest Service
noted that "[s]ince one ... objective[] is to reduce road density, the list of roads
proposed for storage in the [Project] will be looked at ... and will be considered
for decommissioning (instead of storage) so there will be no net increase in total
road densities." (FS 028271.) Moreover, the Project Travel Analysis Report,
repeatedly referenced in the DEIS (See, e.g., FS 001589-90), accounts for and
discloses the numerous road segments in the Project area "incorrectly in [the
Forest Service database] as [d]ecommissioned, should be [intermittent stored
service]." (FS 008179-84.) In short, and similar to the motorized trails subargument above, the Fore st Service discovered and corrected an inventory
mistake, and sufficiently disclosed the outcome in the DEIS.
Based on the foregoing, the Court will deny Plaintiffs motion for summary
judgment with respect to trail and road disclosures, and will grant Defendants'
motion.
CONCLUSION
The East Reservoir Project represents one of the larger forest resource
management projects to be considered by this Court, and the record reflects that
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the Forest Service and Fish & Wildlife Service engaged in a review of potential
impacts commensurate with the Project's scope. Plaintiff's challenges to the
agencies' analyses and conclusions with respect to bull trout, grizzly bear, lynx,
and transportation infrastructure do not warrant the relief Plaintiff requests, and,
accordingly,
IT IS ORDERED that:
(1)
Plaintiffs motion for summary judgment (Doc. 16) is DENIED.
(1)
Defendants' motion for summary judgment (Doc. 32) is GRANTED.
(2)
Defendant-Intervenors' motion for summary judgment (Doc. 39) is
GRANTED.
(4)
The Clerk of Court shall enter judgment in favor of Defendants and
CLOSE this case.
DATED this
I q.U..day of July, 2016.
..
Dana L. Christensen, Chief Judge
United States District Court
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