Native Ecosystems Council et al v. Marten et al
Filing
41
ORDER denying 34 Motion for Preliminary Injunction; denying 18 Motion for Summary Judgment; granting 27 Motion for Summary Judgment. The Clerk of Court shall enter judgment in favor of Defendants and shall CLOSE this case. Signed by Judge Dana L. Christensen on 7/14/2016. (ASG, )
FILED
JUL 14 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
Clerk, U S District Court
District Of Montana
Missoula
CV 15-98-M-DLC
NATIVE ECOSYSTEMS COUNCIL,
et al.,
Plaintiffs,
ORDER
vs.
LEANNE MARTEN, et al.,
Federal Defendants.
Before the Court are the parties' cross-motions for summary judgment and
Plaintiffs' motion for a preliminary injunction. The State of Montana has filed an
amicus brief in support of Defendants' motion, 1 as have, collectively, Watershed
Restoration Coalition, Rocky Mountain Elk Foundation, National Wildlife
Federation, and Sun Mountain Lumber, Inc. 2 Upon review of the papers submitted
and the administrative record, the Court has determined that the matter is fit for
1
The State of Montana's brief focuses primarily on Plaintiffs' unwillingness to
participate meaningfully in the administrative process. While there may be merit to amicus's
argument that the parties' energy would be better spent improving the project prior to finalization
than litigating it afterward, the Court finds that Plaintiffs did not waive their arguments and
reaches Plaintiffs' substantive claims.
2
Amici similarly highlight Plaintiffs' refusal to involve themselves in the administrative
process. Otherwise, their arguments track those of the Defendants.
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disposition without oral argument and that summary judgment for Defendants is
appropriate. Because the Court now grants summary judgment, Plaintiffs' motion
for a preliminary injunction is denied as moot.
BACKGROUND
Plaintiffs filed suit in this matter on July 30, 2015, challenging the
Beaverhead-Deerlodge Revised Land and Resource Management Plan ("Forest
Plan") and the East Deerlodge Valley Landscape Restoration Management Project
("Project") on the Beaverhead-Deerlodge National Forest ("Forest"). Plaintiffs
seek judicial review of United States Forest Service ("USFS") and United States
Fish and Wildlife Service ("FWS") actions under the Administrative Procedure
Act ("APA"). Plaintiffs dispute USFS's and FWS's compliance with the
Endangered Species Act ("EPA"), the National Forest Management Act
("NFMA"), and the National Environmental Policy Act ("NEPA").
The Project authorizes 502 acres of commercial thinning and 2,541 acres of
commercial logging within 39,651 acres of the East Deerlodge Management Area
in the Beaverhead-Deerlodge National Forest. (FS 002897, 002900.) The primary
purpose of the Project is to salvage lodgepole pine. Stands of lodgepole pine trees
within the Project area have been devastated by the mountain pine beetle epidemic
in recent years. (FS 002503.) As a result, the vast majority of the lodgepole pine
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trees in the Project area are dead. Many of the trees have fallen, and those that
have not are at risk of doing so within the next fifteen years. (FS 002504,
002435.) Without intervention, the forest floor will be covered with combustible
material, and new growth will be delayed. (FS 002457, 002478.)
In authorizing the Project, USFS addresses the following activities and
goals beyond the salvage of lodgepole pine. Small-diameter Douglas fir are to be
thinned in approximately 500 acres. Encroaching conifers will be removed from
the edges of parks, meadows, and aspen stands. The Project intends to protect
riparian habitat with the construction of worm fencing to prevent livestock grazing
near streams and construction or repair of 12 culverts that prevent fish passage.
The Project authorizes construction of 11.2 miles of temporary roads, but by the
time of project completion, approximately 22 miles of authorized and
unauthorized motorized roads and trails will be decommissioned or closed.
USFS considered three alternatives before determining the scope of the
Project. The first was to do nothing at all. The second alternative met the goals
and objectives set forth in the Forest Plan for timber management, vegetation,
aquatic resources, and wildlife habitat, but USFS found it to be less ideal than the
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third alternative, which also met all goals. (FS 02919-20. 3) The third alternative
was chosen based on "several key elements including consistency with project
purpose and need, consideration of environmental and social impacts, and
responsiveness to the objections raised during the objection process .... " (FS
002918.) The selected alternative was modified during the decision-making
process, primarily to improve outcomes for soils and wildlife-particularly the
Northern Rockies Lynx-within the Project area. (FS 002922-24.) USFS
determined that the modified selected alternative, as compared to the other
alternatives, would be equal or better for vegetation within the Project area and
preferable in terms of timber management, aquatic resources, and wildlife habitat.
(FS 002920.)
The Project area is currently heavily used by the public. Road density is ,
high, at 2.4 miles per square mile. Upon Project completion, road density will
decrease to 2.2 miles per square mile. The area has traditionally been and remains
open to livestock grazing. It has been and will continue to be used by
snowmobilers, hunters, and miners. It is also open for firewood cutting and
recreation. USFS has historically used noxious weed treatments and insecticides
3
Citations to the record consist of two components: (1) a reference to the administrative
record (e.g., "FS" for documents from the USFS administrative record or "FWS'' for those from
the FWS record); and (2) the six-digit page number within the relevant record.
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within the area, and these treatments are expected to continue in the future. (FS
002518.)
If the Project area were not so heavily used by the public, it would likely be
a suitable habitat for grizzly bears. (FS 017393.) USFS determined that grizzly
bears "may be present" within the Project area. (FS 017394.) Analyzing the
current Project area conditions alongside the likely effects of the Project, USFS
found the Project "may affect and is likely to adversely affect" the grizzly bear.
(Id.) The same paragraph clarifies that the adverse effect is due to pre-Project
conditions: "[e]ven though the project as designed will decrease open motorized
roads and trails in the action area, will minimize disturbance to grizzly bears by
following travel restrictions and implementing food storage requirements; due to
the current high road density, and high level of human use throughout the action
area, the current condition of the action area may displace grizzly bears from this
area that they may have used otherwise." (Id.) USFS determined that the Project
itself would "not contribute to significant cumulative effects to the grizzly bear"
because use of the area by grizzlies "is suspected to be low," the Project area is
outside of the NCDE Recovery Zone, the Project will be short-lived, and the
Project will decrease motorized roads and trails-the factor most significantly
impacting the suitability of the forest as a habitat for the grizzly. (Jd.)
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As a result of USFS' s finding of a potential adverse effect upon the grizzly
bear, it initiated a consultation with FWS. FWS used its 2013 biological opinion
and incidental take statement regarding the effects of the Forest Plan on the grizzly
bear as a baseline, which Defendants describe as the first tier of a tiered
consultation regarding the Project. (FS 017433-34, 014789-910.) FWS set two
surrogate measures of incidental take: (1) existing access management; and (2)
construction of new temporary and permanent roads. The biological opinion
weighs the likelihood of temporary road construction for specific projects on the
Forest, determining that, while roads adversely affect the grizzly bear,
implementation of the Forest Plan-which authorizes construction of 70 total
miles of temporary road-will not threaten the grizzly. (FS 017433-34.) Because
the Project-the first project under the Forest Plan-authorized construction of
11.2 miles of temporary roads, well within the 70 miles FWS evaluated in its
biological opinion, FWS determined that it did not need to issue additional
biological opinions regarding the Project itself.
Nonetheless, the FWS sent two consultation letters regarding the Project,
repeating the sufficiency of the biological opinion and clarifying that the Project
did not present new threats to the grizzly bear. In 2014, FWS wrote that the
"project does not have additional adverse effects to grizzly bear" beyond those
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fully analyzed within the Forest Plan biological opinion. (FS 017434.) One year
later, it advised USFS that the Project "is not likely to jeopardize the continued
existence of grizzly bears." (FS 017439.) While FWS also found that some
aspects of the Project "may result in short-term disturbance to grizzly bears in the
immediate vicinity of the units due to increase in human presence," it informed
USFS that effects from such disturbances would be "insignificant" because of the
proximity of secure habitat within the action area. (FS 17439.)
LEGAL STANDARDS
I.
Summary Judgment
Summary judgment is appropriate when the moving party demonstrates 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). Where the documentary
evidence produced permits only one conclusion, summary judgment is warranted.
Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 251 (1986). To preclude entry of
summary judgment, any existing factual dispute must be material, as factual
disputes that are irrelevant or unnecessary to the outcome of the matter will not be
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 &
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Cnty. of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 1997)
(citations omitted).
II.
Administrative Procedure Act
Courts review claims regarding the ESA, NFMA, and NEPA under the
APA. 5 U.S.C. §§ 701-706; See, e.g., Native Ecosystems Council v. Dombeck,
304 F.3d 886, 891 (9th Cir. 2002). Under the APA, a "reviewing 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." 5 U.S.C. § 706(2). The Court's scope of review is narrow; it must "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 F.3d 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. (citations and internal quotation marks omitted). If the record supports the
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agency's decision, that decision should be upheld even if the record could support
alternative findings. Arkansas v. Oklahoma, 503 U.S; 91, 112-13 (1992). Review
of the agency's action is "highly deferential, presuming the agency action to be
valid." Buckingham v. Secy of US. Dep 't ofAgric., 603 F.3d 1073, 1080 (9th
Cir. 2010).
However, courts must not "rubber stamp" administrative decisions "they
deem inconsistent with a statutory mandate or that frustrate the congressional
policy underlying a statute." Bureau ofAlcohol, Tobacco, & Firearms v. Fed
Labor Relations Auth., 464 U.S. 89, 97 (1983) (citations and 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.
Compliance with the ESA
Plaintiffs allege that the Forest Plan and the Project present threats to the
grizzly bear, a species classified as threatened under the ESA. Plaintiffs claim that
FWS and USFS failed to use the best available science in their ESA consultations
on grizzly bears in the area. They argue that both the Project and the Forest Plan
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consultations fail to consider appropriate scientific findings regarding road density
and secure habitat requirements for Northern Continental Divide Ecosystem
("NCDE") grizzly bears. Defendants claim that they applied the best available
science and, further, that the Project will decrease road density and that the NCDE
requirements do not apply in the Forest, which is outside the NCDE recovery
zone.
Federal agencies must use the "best scientific and commercial data
available" in ESA consultations. 16 U.S.C. § 1536(a)(2). Because agencies are
better situated than the court to determines what is the "best available science,"
they are entitled to substantial deference in making that determination. San Luis &
Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 621 (9th Cir. 2014).
However, the ESA exists to improve outcomes for protected species, and so
agencies must honor Congress's intent to "give the benefit of the doubt to the
species." Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988).
A.
The Forest Plan
Plaintiffs argue that the Forest Plan violates the ESA because the Forest
Plan consultation does not use the best available science and because FWS failed
to support its surrogate measures of incidental take. The Court considers each
theory in tum.
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Plaintiffs allege that, during the Forest Plan consultation process, the
agencies failed to use the best available science regarding road density and habitat
for Northern Continental Divide Ecosystem grizzlies. Plaintiffs cite to five
publications in support of their claims that grizzly bears require fewer roads and
more secure habitat than that provided for by the Fore st Plan. Defendants assert
that these five publications were indeed considered by FWS in preparing its
biological opinion but that the specific recommendations found within each
publication are not controlling with regard to the Forest Plan.
The parties do not dispute that roads adversely impact grizzly bears. Under
the Fore st Plan, road density will decrease slightly from its current level and that
allowed under the previous forest plan. Defendants claim that the Forest Plan's
allowances are lawful. Plaintiffs argue that the density will remain too high to
comply with the ESA.
The parties likewise agree that more secure habitat within the Forest would
benefit the grizzlies. As with road density, implementation of the Forest Plan will
result in a Fore st slightly more hospitable to grizzly bears in terms of secure
habitat. Again, the dispute between the parties is whether the agencies have an
affirmative obligation to create an ideal forest for the grizzly bear.
The parties do not dispute that the 2013 draft Northern Continental Divide
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Ecosystem ("NCDE") Grizzly Bear Conservation Strategy ("Strategy") presents
the best available science regarding preservation of NCDE grizzly populations.
However, they argue its relevance to the Forest Plan.
USFS appropriately consulted the Strategy, which does not require the
agency to set specific goals within the Forest. The NCDE draft Strategy
"describe[s] the coordinated management and monitoring efforts necessary to
maintain a recovered grizzly bear population in the NCDE and document[ s] the
commitment of ... agencies to this shared goal." (FWS 007300.) The Strategy
outlines different regions for which different recommendations are made. In the
NCDE recovery zone, the Strategy recommends road density considerably lower
and secure habitat considerably higher than those set forth as goals in the Forest
Plan. However, these goals apply only within the NCDE recovery zone. Part of
the Forest is within the NCDE, but it is not within the recovery zone. Rather, it is
within "Zone 2," for which the Strategy recommends: "because we know that
management direction ... in Zone 2 did not preclude male grizzly bears from
occupying this area in low densities, existing direction will continue to apply."
(FWS 007397.)
Thus, although it was appropriate for USFS to consider the Strategy's
recovery zone recommendations, which it did with clear reservations about their
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applicability, those recommendations do not apply within the Forest. USFS was
free to set different goals for road density and secure habitat in the Forest Plan.
Plaintiffs have not met their burden of showing that the Forest Plan violates the
ESA's best available science requirement by not implementing the Strategy's
recovery zone recommendation.
Plaintiffs also argue that the Plan violates the ESA because FWS failed to
adequately support its surrogate measures of incidental take. FWS applied two
surrogates: the existing levels of access management and anticipated temporary
road conditions. The first surrogate allows permanent open road density at 1.9
miles/square mile within the Project area. The second allows 70 miles of
temporary roads to assist with implementation of the Fore st Plan. Plaintiffs claim
that FWS should have used the recovery zone recommendations from the Strategy,
described above, as a surrogate measure. As explained above, the Forest is not
within the recovery zone, and this argument fails.
Plaintiffs also argue that FWS did not adequately support its surrogate
measures with scientific data. The ESA does not require an agency to use a
specific process in setting surrogate measures. Rather, the agency fulfills its
requirements when it "base[ s] its decision on the best available scientific data and
[grounds] its decision in a consideration of the relevant factors." Greenpeace
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Action v. Franklin, 14 F.3d 1324, 1337 (9th Cir. 1992).
FWS met the ESA's requirements in supporting its surrogate measures of
incidental take. It reasonably determined that the Fore st Plan would not harm the
grizzly bear when it requires a reduction in road density and an increase in secure
habitat over time. In reaching that conclusion, FWS considered the best available ,
science, including the same studies Plaintiffs champion. In fact, Plaintiffs'
argument is largely that there are too many roads in the Forest. If anything, then,
the parties generally agree about basing the surrogate measures of incidental take
on current and future road density. And one might expect them to agree that a
temporary increase in road density leading to a permanent decrease would benefit
the grizzly bear.
Plaintiffs have not met their burden of showing that the Forest Plan violates
federal law. The record unambiguously supports USFS's conclusion that the
Forest Plan and the Project will benefit the grizzly bear, even if it will not create
ideal conditions for the species. It cannot be argued that both the road density and
the amount of secure habitat within the Fore st limit its suitability for grizzly bears.
However, the ESA does not mandate that USFS transform the Forest's recreational
areas into grizzly habitat.
Plaintiffs' argument is not that the Forest Plan moves in the wrong direction
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but that it does not move far enough. The Court cannot agree, because to agree
would be to overreach. This Court cannot tell the agency, which is better situated
to evaluate and implement scientific data, exactly how to perform a task delegated
to it by Congress. Plaintiffs have not met their burden of showing agency error,
and the Court finds no violation of the ESA.
B.
The Project
Plaintiffs' arguments regarding the Project itself mirror those claiming error
in the Forest Plan. They assert that the Project biological assessment unlawfully
fails to disclose scientific sources supporting USFS's conclusion that sufficient
secure habitat exists within the Project area. Further, they claim that FWS failed
to use the best available science in its consultation letters regarding the Project's
impact on the grizzly bear. Ultimately, although the Project will result in a net
increase in secure habitat and a net decrease in road density, Plaintiffs argue that
the Project will not create a sufficient amount of secure habitat or decommission a
sufficient number of roads.
Plaintiffs advocate for specific goals for secure habitat and road density
within the Project area-the same goals, described above, outlined for the NCDE
recovery zone. The Court cannot substitute its judgment for that ofUSFS. The
agency appropriately considered the best available science and made reasonable
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standards and objectives for the Forest based upon that science. Thus, the
question is not whether Plaintiffs have presented better goals for the Project.
Rather, the only remaining issue is whether the Project consultation complies with
the ESA's procedural requirements.
Under the ESA, USFS's finding that the Project "may affect" the grizzly
necessitated its consultation with FWS. 50 C.F.R. §§ 402.14(a). Because USFS
determined that the Project is "likely to adversely affect" the grizzly bear, the ESA
required USFS and FWS to engage in a formal consultation. 50 C.F.R. §§
402.13(a), 402.14(a)-(b). To meet the ESA's requirements, FWS was required to
review the action and evaluate its impact on the grizzly bear with a "biological
opinion" supporting its findings. Id.; 50 C.F.R. § 402.14(g). However, FWS need
not "reinvent the wheel for every [biological opinion]." Gifford Pinchot Task
Force v. FWS, 378 F.3d 1059, 1068 (9th Cir. 2004). Rather, the biological
opinion is a piece of the consultation process, and it may "permissibly rely, in part,
on the projections and assumptions of the [Forest Plan.]" Id.
The agencies' Project consultation meets the ESA's requirements. In the
Project biological assessment, USFS found that "the current condition of the
action area may displace grizzly bears from [the Project] area that they may have
used otherwise." (FS 017394.) For that reason, it initiated the consultation
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process with FWS, which determined that, while the Project may result in shortterm disturbances to the grizzly bear, it would ultimately have no adverse effect.
Taken together, the consultation letters and the biological opinion make clear that
FWS fully considered the impact of the Forest Plan and the Project and reasonably
found that the Project would not threaten the species.
The Project is consistent with the Forest Plan, which itself complies with the
BSA. It is clear from both the Project biological assessment and the consultation
documents that any potential adverse effect to the grizzly bear within the Project
area is attributable not to the Project itself but to the continued use of the Project
area as a recreational site. The Project will decommission significantly more roads
than it builds within the Project area. The lower road density will create more
secure habitat. Plaintiffs cannot isolate the words "likely to adversely affect" from
their context, which makes clear that any harm to the grizzly bear is preexisting
and that any temporary disturbance to a possible grizzly bear population will
ultimately lead to a more hospitable forest. The Court cannot tell USFS and FWS
exactly how to protect the grizzly bear. Defendants are entitled summary
judgment on Plaintiffs' BSA claim.
II.
The Forest Plan Snag Standard
Plaintiffs next argue that they are entitled to summary judgment because the
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Forest Plan's snag standard violates NFMA. Plaintiffs raise two arguments in
support of this claim: ( 1) that the size of the analysis area for Forest Plan snag
standard application is arbitrary and capricious, and (2) that the snag standard does
not adequately ensure the viability of cavity nesting species. The Court addresses
each in turn.
NFMA requires USFS to enact forest planning regulations that "provide for
diversity of' wildlife. 16 U.S.C. § 1604(g)(3)(B). To meet NFMA's
requirements, USFS regulations mandate that "[f]ish and wildlife habitat shall be
managed to maintain viable populations of existing native and desired non-native
vertebrate species in the planning area." 36 C.F.R. § 219.19 (2000). Under
NFMA, the Forest Plan must comply with USFS regulations regarding species
viability, and the Forest Plan Environmental Impact Statement ("EIS") sets forth
the Forest's intent to do so. (See FS 017655.)
The parties do not dispute the importance of dead and dying trees as a
habitat for cavity-nesting species. In order to ensure the continued viability of
these species, the Forest Plan sets standards for snag retention. Under the Fore st
Plan, all snags greater than 20" diameter at breast height must be retained unless
they present a hazard. (FS 017692.) Snags greater than 15" must be retained at
varying numbers per acre dependent upon the vegetation category. (Id.) Where
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there are insufficient live trees or snags greater than 15 11 , the Plan requires that all
trees greater than 15 11 be retained. (Id.) The Plan also requires retention of
specified numbers of live trees greater than 10 11 to provide for future snags within
designated areas. (FS 017692-93.)
Plaintiffs argue that Defendants set an arbitrary and capricious area for
application of the snag standard. More specifically, Plaintiffs claim that the snag
standard should be averaged over smaller land areas. Defendants assert that a
larger application area allows for a clumpy rather than an even distribution of
snags, which is supported by the best available science.
Plaintiffs claim that snag densities should be averaged over a 5-25 acre
analysis unit, rather than over the entire Project area. In support, they cite to
Oregon Natural Resources Council v. Brong. 492 F.3d 1120 (9th Cir. 2007.) In
Brong, the Bureau of Land Management ("BLM") averaged snag density over an
entire project area. The Ninth Circuit determined that the BLM's method of
averaging was inconsistent with the relevant land management plan, as well as
"grossly misleading" because it authorized the logging of two-thirds of the project
area without any snag retention. Id. at 1129-30.
In response, Defendants argue that USFS based its snag standard on the best
available science. They point to USFS's reliance upon Bollenbacher, et al., 2008
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("Bollenbacher"). Bollenbacher sets forth specific recommendations for snag
densities within the Forest, which vary according to forest vegetative conditions.
(FS 019284.) The analysis recommends clumpy distributions of snags to match
the conditions under which the species evolved. (FS 019287, 020719.) In fact,
Bollenbacher specifically expresses that analyzing snag density over a large
amount of acreage is preferable for ensuring the continued viability of cavitynesting species within the Forest: the recommended snag standards "do not need to
be applied to every acre within a treatment area, but should be the average density
of snags within the total treatment unit acreage or even the entire project area."
(FS 020735.)
The Forest Plan snag standard is consistent with Bollenbacher, upon which
USFS reasonably relied. The snag standard complies with NFMA because it is
neither arbitrary nor capricious. USFS seeks to restore and maintain the natural
and ideal clumpy distribution of snags that allowed for the evolution of the
species. To meet this goal, the Forest Plan allows snag standards to be averaged
over units or project areas, just as Bollenbacher recommends. (FS 017692,
019285-87.) Plaintiffs' claim that USFS had "no scientific basis" for its snag
standard is not supportable. Pl. 's Br. 18.
Nor does Plaintiffs' citation to case law sufficiently support their argument.
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Brong does not apply here, as that case involved a snag standard that was
inconsistent with the land management plan. 492 F.3d at 1130. Here, the Project
applies the same standard as the Forest Plan, which itself complies with NFMA.
Additionally, the Project requires retention of all live trees and snags greater than
15", preventing the sort of statistical manipulation made possible in Brong.
Plaintiffs also argue that the snag standard fails to adequately ensure the
viability of cavity-nesting species. They claim that, although the Forest Plan
standard preserves all snags greater than 20" diameter and a set number greater
than 15", an appropriate standard would also conserve some snags between 10"
and 15". Defendants disagree that USFS had any obligation to set specific
retention standards for smaller diameter snags, and they further counter that both
the Forest Plan and the Project demonstrate the agency's dedication to preserving
the viability of cavity-nesting species in the Forest and the Project area.
The Forest Plan does not set a standard for snags between 10" and 15"
because USFS determined that implementation of the Forest Plan would preserve a
wealth of snags within this category. Looking to relevant scientific publications,
USFS determined that smaller diameter snags, abundant throughout the Forest, are
unthreatened by the actions anticipated in the Forest Plan. (FS 019285.) USFS
also found that, because of the high rates of death due to beetle infestation and
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wildfire, there would be no shortage of smaller diameter snags into the future.
(Id.) Additionally, USFS demonstrated a strong commitment to consideration of
cavity-nesting species in the Forest Plan EIS, a dedication reflected in USFS's
revisions to the draft EIS. (See FS 019277, 019287, 019291.) The Court
disagrees that USFS had any obligation to set a specific Forest standard for
retention of small-diameter snags when the agency determined that there was no
need for such a standard after carefully considering the scientific data.
Plaintiffs have not met their burden of showing that the snag standard is
arbitrary or capricious or that it violates NFMA by presenting a threat to the
continued viability of cavity-nesting species. Defendants are entitled to summary
judgment on Plaintiffs' claims regarding the snag standard.
III.
Compliance with NEPA and NFMA
Plaintiffs argue that the Project violates NFMA and NEPA because the
Project EIS does not comply with Forest Plan riparian conservation and
management standards or with a Forest Plan standard requiring USFS to close all
unauthorized motor vehicle routes. Defendants raise two defenses, arguing: (1)
that Plaintiffs cannot argue that the Project fails to meet the Forest Plan's riparian
standards because they failed to raise these concerns during the administrative
process; and (2) that Plaintiffs' claims also fail on the merits. The Court
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determines that Plaintiffs have not met their burden of showing Defendants'
noncompliance with NFMA and NEPA. Thus, it does not consider Defendants'
procedural argument.
As relevant to Plaintiffs' argument, NFMA requires that the Project be
consistent with the Forest Plan. 16 U.S.C. § 1604(1). Plaintiff argues that the
Project violates NFMA because USFS arbitrarily and capriciously authorized the
Project despite its failure to show compliance with the Forest Plan Riparian
Management Objectives and Riparian Conservation Area standard. Plaintiffs
allege two specific defaults: (1) that USFS did not evaluate the condition of each
stream within the Project area according to the Forest Plan's standards; and (2)
that USFS unlawfully failed to disclose the numeric total maximum daily load for
sediment in Petersen Creek, which is found within the Project area. Defendants
claim that because the Project presents no threat to riparian areas, no further
analysis or disclosure was necessary.
The relevant conservation standard is that "activities in [Riparian
Conservation Areas] shall ... enhance, restore or maintain" the area. (FS
017662.) Activities that do not meet specific riparian objectives must "include a
restoration component ... which trends towards accomplishing desired stream
function[.]" (FS 017662.) USFS did not authorize any timber cutting in riparian
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areas. In fact, the only actions within the riparian areas are restorative in
nature-culvert replacement, road decommissioning, livestock fencing, and large
woody debris replacement. (FS 002132--41, 002905-13.)
USFS specifically
intended for every action taken within riparian areas to benefit those areas,
determining that the Project would likely improve water conditions. (FS
002203-05, 002321.)
Plaintiffs argue that the Project EIS contains insufficient information for
them to agree that Project actions within riparian areas will indeed be beneficial.
However, they have not pointed to any data suggesting that the proposed activities
could possibly threaten the water systems within the Project area. In the absence
of any evidence that the Project could harm riparian habitat, the Court cannot
determine that the Project is inconsistent with the Forest Plan and therefore in
violation ofNFMA.
Plaintiffs present essentially the same arguments regarding alleged
violations of NEPA. Plaintiffs have submitted limited argument regarding NEPA,
but their claim is ultimately that USFS was obligated to disclose more information
than it did regarding the effects of proposed actions on riparian areas. In response,
Defendants point to specific passages within the EIS describing detailed findings
regarding water conditions within the Project area. (See FS 002158-65,
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002282-83,002293,2156-65,002282-83,002055-66,002156-64,002169-70,
000204-05,000022-25,000084,002321.)
NEPA exists to inform agency decision-makers and the public about the
environmental consequences of proposed federal actions. Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 349 (1989). Its requirements are
"essentially procedural." Vt. Yankee Nuclear Power Corp. v. Natural Res. Def
Council, 435 U.S. 519, 558 (1978). Under NEPA, an agency must prepare an EIS
before taking any "major Federal action significantly affecting the environment."
42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.11. In reviewing the EIS, a court is
limited to determining whether the agency took a "hard look" at the proposed
action's environmental consequences. Idaho Conservation League v. Mumma,
956 F.2d 1508, 1519 (9th Cir. 1992).
There is no NEPA violation here. The Court is satisfied that USFS took the
requisite hard look at the Project's potential impact on riparian areas. USFS has
provided substantial citations to the EIS, pinpointing its specific findings about the
likely consequences of the proposed action on water conditions within the Project
area. The EIS demonstrates USFS's careful consideration of the Project's
environmental impact, and that is all that NEPA requires.
Plaintiffs also devote one paragraph to arguing that USFS violated NFMA
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by failing to disclose Petersen's total maximum daily load for sediment within the
EIS. However, the EIS does in fact state that a total maximum daily load has been
developed for Petersen Creek. (FS 002153.) It also sets forth USFS's commitment
to consideration of that limit and cites to the Montana Department of
Environmental Quality's website for the specific limit. (FS 002160, 002184-88,
002324.) While the Court notes that a failure to disclose this information would
more appropriately give rise to a claim under NEPA than NFMA, it finds that no
violation occurred under either Act because no failure to disclose occurred.
Finally, Plaintiffs argue that USFS violated both NFMA and NEPA by not
requiring the closure of all unauthorized roads within the Project area. This
argument fails because it is based in a misrepresentation of the relevant Forest
Plan standard. Plaintiffs claim that the Forest Plan mandates closure of all
unauthorized motorized routes. However, the standard clearly requires USFS only
to restrict travel to routes that have either been "designated through site specific
travel planning" or, if such routes have not been designated, "identified on the
Forest Plan Interim Roads and Trails Inventory GIS Layer." (FS 017676.) The
Inventory includes the unauthorized motorized routes within the Project area. (FS
017697; See also FS 000837-38, 002410, 018202-03.) Thus, the Project EIS is
consistent with the Forest Plan, and USFS could not have violated NFMA by
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failing to close all unauthorized routes within the Project area. Additionally, there
is no claim under NEPA because Plaintiffs have not argued that Defendants failed
to comply with its disclosure requirements.
Federal Defendants are entitled to summary judgment on Plaintiffs' claims
for violations ofNFMA and NEPA.
According, IT IS ORDERED that:
(1)
Plaintiffs' Motion for Summary Judgment (Doc. 18) is DENIED.
(2)
Defendants' Motion for Summary Judgment (Doc. 27) is GRANTED.
(3)
Plaintiffs' Motion for Preliminary Injunction (Doc. 34) is DENIED as
moot.
(4)
The Clerk of Court shall enter judgment in favor of Defendants and
shall CLOSE this case.
Dated this 14th day of July, 2016.
Dana L. Christensen, Chief istrict Judge
United States District Court
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