Alliance for the Wild Rockies et al v. Marten et al
Filing
66
ORDER granting 27 Motion for Preliminary Injunction on the following terms: the Project is enjoined until reinitiation of consultation on the Lynx Amendment is completed and Project-level consultation incorporating the Lynx Amendment analysis is also completed. Signed by Judge Brian Morris on 11/22/2016. (ASG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ALLIANCE FOR THE WILD
ROCKIES, et al.
CV-15-99-M-BMM
Plaintiffs,
vs.
LEANNE MARTEN, et al.,
ORDER REGARDING MOTION
FOR PRELIMINARY
INJUNCTION
Defendants.
I. Overview
Plaintiffs Alliance for the Wild Rockies and Native Ecosystems Council
(“Alliance”) have challenged an agency action and inaction in relation to the
Greater Red Lodge Habitat and Vegetation Management Project (the “Project”) on
the Custer-Gallatin National Forest and the Custer Forest Plan, including the
Northern Rocky Lynx Management Direction (“Lynx Amendment”). Alliance
argues that Federal Defendants, Leann Marten, Regional Forester of Region One of
the United States Forest Service, United States Forest Service (“USFS”), and
United States Fish and Wildlife Service (“FWS”), violated the National
Environmental Policy Act (“NEPA), the National Forest Management Act
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(“NFMA”), the Endangered Species Act (“ESA”), and the Administrative
Procedure Act (“APA”).
Alliance has filed a motion for preliminary injunction to prevent actions for
the Project that may commence at any time. Alliance claims that an injunction
would prevent imminent and irreparable harm. Federal Defendants oppose the
motion for preliminary injunction.
II. Factual Background
The Custer National Forest Beartooth Ranger District proposed the Project
to “reduce hazardous fuels” in the Project area, “improve resiliency of forest
vegetation and grasslands, enhance aspen habitat, and improve water quality.”
(FS000444.) The USFS issued a Final Environmental Impact Statement (“FEIS”)
for the Project on April, 2015. (FS000442-001261.) The USFS signed the Record
of Decision authorizing the Project on May 19, 2015. (FS000072.) The Project area
includes about 21,871 acres in a mountainous region of southcentral Montana, in
the Beartooth Mountains located west and north of the City of Red Lodge,
Montana. (FS000005; FS0000954 FS025780.) The Project area sits in the Greater
Yellowstone Area, directly adjacent to the Absaroka-Beartooth Wilderness and
two designated inventoried roadless areas: Burnt Montana and Red Lodge CreekHellroaring. (FS000541, FS000834.)
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The Project authorizes 1,051 acres of commercial logging and an additional
756 acres of noncommercial burning and tree removal. The Project also authorizes
the temporary construction, re-construction, or maintenance of approximately 19
miles of logging roads. (FS000027, FS000472.) The Project proposes activities that
could affect wildlife occurrence and habitat use. (FS 000954.) The Project area
provides habitat for grizzly bears and represents a critical habitat for lynx.
(FS0000467.)
Canadian Lynx
U.S. Fish and Wildlife Service (“FWS”) listed the Canada lynx as an ESAlisted threatened species in March 2000. FWS indicated that lack of guidance to
conserve lynx and snowshoe hare habitat in outdated national forest plans
represented the main threat to Canada lynx. (FS006684.) Snowshoe hare comprises
lynx’s primary prey. (FS0007545.)
The USFS and Bureau of Land Management (“BLM”) entered into
conservation agreements with FWS to consider the Lynx Conservation Assessment
and Strategy (“LCAS”) in response to the threatened listing. (FS007535.) FWS
agreed to put on hold any project that would be “likely to adversely affect” lynx
until the USFS had amended the forest plans. Id.
The LCAS identified and mapped four Lynx Analysis Units on the Custer
National Forest. (FS00975.) FWS designated 1,841 square miles of land as critical
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habitat for the Canada lynx. Cottonwood Envtl. L. Ctr. v. U.S. Forest Serv., 789
F.3d 1075, 1077 (9th Cir. 2015). FWS did not designate, however, any National
Forest Land as critical habitat. Id.
The USFS issued the Northern Rockies Lynx Management Direction (“Lynx
Amendment”) Record of Decision in March, 2007. (FS007531.) This Lynx
Amendment fulfilled the USFS’s obligation under the conservation agreement with
FWS to amend the forest plans. (FS007535.) The Lynx Amendment “set specific
guidelines and standards” for permitting activities that likely have “an adverse
effect on Canada lynx.” Cottonwood Envtl. L. Ctr.¸789 F.3d at 1078. These
activities include “over-the-snow recreational activity, wildland fire management,
pre-commercial forest thinning, and other projects that may affect the Canada
lynx.” Id. The USFS amended 18 National Regional Forest Plans, including the
Custer Forest Plan, to include the Lynx Amendment. (FS000975; FS004927.)
The USFS initiated consultation under Section 7 of the ESA with FWS.
FSW prepared a Biological Opinion/Incidental Take Statement on the effects of the
Lynx Amendment on the Canada lynx. (FS035009-035293.) This Biological
Opinion determined that the Lynx Amendment proved “not likely to jeopardize the
continued existence of lynx.” (FS035283.) The Biological Opinion concluded that
the Lynx Amendments proved “necessary for long-term conservation habitat for
lynx and its prey on Federal Lands.” Id.
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The 2007 Biological Opinion/Incidental Take Statement for the Lynx
Amendment did not assess the impact of the Lynx Amendment on critical habitat
on National Forest lands. The Biological Opinion concluded that“[t]he final [2006]
critical habitat designation [for Canada lynx] did not include Forest Service lands
that are covered by the proposed amendments. Therefore, this biological opinion
will not analyze effects to critical habitat, as none will be affected.” (FS035224.)
Four months later FWS announced that its critical habitat designation had
been “improperly influenced by then deputy assistant secretary of the Interior Julie
MacDonald.” Cottonwood Envtl. L. Ctr.¸789 F.3d at 1078 (citing Endangered and
Threatened Wildlife and Plaints; Revised Designation of Critical Habitat for the
Contiguous United States District Population Segment of the Canada Lynx, 74
Fed. Reg. 8616-01, 8618 (Feb. 25, 2009)). As a result, FWS revised its critical
habitat designation. 74 Fed. Reg. 8616-01, 8618 (Feb. 25, 2009). The revised
designation identified critical habitat in 11 National Forests. Id.
Under the revised designation of lynx critical habitat, the Project area lies
within the lynx critical habitat Unit 5- Greater Yellowstone Area. (FS000985.) The
agencies have not reinitiated and completed ESA consultation to address the
impacts of the Lynx Amendment on lynx critical habitat on National Forest lands.
(Doc. 9 at 6.) Thereafter, the USFS determined in its Biological Assessment for the
Project, that the Project may affect, but would not likely adversely affect the
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designated critical habitat of the Canada lynx. (FS025851.) FWS concurred in that
assessment. (FS025882.)
III. Legal Framework
A. ESA
ESA Section 7(a)(2) provides that each Federal agency shall “insure that any
action authorized, funded, or carried out by such agency . . . is not likely to
jeopardize the continued existence of any endangered species or threatened species
or result in the destruction or adverse modification of habitat” of the species. 16
U.S.C. § 1536(a)(2). The consulting agency must prepare a biological opinion if it
appears that an action may affect an endangered or threatened species. Cottonwood
Envtl. L. Ctr.¸789 F.3d at 1085.
The biological opinion should explain how the action “‘affects the species or
its critical habitat.’” Id. (quoting 16 U.S.C. § 1536(b)(3)(A)). The consulting
agency must suggest “reasonable and prudent alternatives” when the biological
opinion concludes that the action proves likely to jeopardize an endangered or
threatened species. 16 U.S.C. § 1536(b)(3)(A). The consulting agency may proceed
with the action if the biological opinion concludes that the action proves not likely
to jeopardize an endangered or threatened species. Id.
B. NFMA
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The NFMA requires the Secretary of Agriculture to “develop, maintain, and,
as appropriate, revise land and resource management plans for units of the National
Forest System.” 16 U.S.C. § 1604(a). The NFMA provides for forest planning at
the forest level and the project level. 16 U.S.C. § 1604; See Ohio Forestry Ass’n v.
Sierra Club, 523 U.S. 726 729-30 (1998). The USFS makes forest management
decisions by developing Land and Resource Management Plans (“Forest Plan”) for
each unit of the National Forest System. Forest Guardians v. U.S. Forest Serv.,
329 F.3d 1089, 1092 (9th Cir. 2003). The USFS then implements the Forest Plan
by approving site-specific actions that prove consistent with the Forest Plan and
denying site-specific actions that prove inconsistent with the Forest Plan. Id. The
Forest Plan also must comply with NEPA and the ESA. Id. at 1093.
C. APA Review
The Court reviews compliance with NEPA, NFMA, and the ESA under the
judicial process set forth in the Administrative Procedures Act (“APA”). 5 U.S.C.
§§701-706; Native Ecosystems Council v. Dembeck, 304 F.3d 886, 891 (9th Cir.
2002). The decision may be set aside only when the court finds the agency’s
decision “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” Oregon Nat. Resources Council Fund v. Goodman, 505
F.3d 884, 889 (9th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A)). A final agency
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decision will be overturned only if the agency committed “clear error in
judgment.” Marsh, 490 U.S. at 378.
IV. Discussion
Alliance argues that Federal Defendants have violated the ESA, NEPA, and
NFMA. This Order addresses the Federal Defendants’ failure to reinitiate and
complete consultation on the Lynx Amendment under the ESA.
A. ESA Procedural Violation
FWS designated 1,841 square miles of land as lynx critical habitat in 2006
following its decision in 2000 to list the Canada lynx as a threatened species. 71
Fed. Reg. 66008-001, 66030 (Nov. 9, 2006); 65 Fed. Reg. 16052-01, 16052, 16061
(Mar. 24, 2000). The critical habitat designation included no National Forest land.
71 Fed. Reg. 66008-001, 66030 (Nov. 9, 2006). The USFS adopted the Lynx
Amendment in March 2007 and amended the Custer Forest Plan. (FS034852.)
The USFS and FWS issued a biological assessment and biological opinion
for the Lynx Amendment in March 2007. (FS035209-FS035293.) The FWS then
designated more lynx critical habitat land, including National Forests. 74 Fed. Reg.
8616-01, 8618 (Feb. 25, 2009). The USFS has declined to reinitiate ESA § 7
consultation with FWS on the Lynx Amendment since the new critical habitat
designation.
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The Ninth Circuit recently affirmed the Court’s prior decision that “the
revised designation of critical habitat for the Canada lynx required reinitiation of
Section 7 consultation on the Lynx Amendments.” Cottonwood, 789 F.3d at 1079,
affirming Salix v. USFS, 844 F.Supp.2d 984 (D. Mont. 2013), en banc petition and
petition for panel rehearing denied (Dec. 17, 2015). The plaintiff in Cottonwood
also presented an ESA challenge to the USFS’s failure to reinitiate consultation
after the FWS designated National Forest land as critical lynx habitat. Id.
The agencies must reinitate “formal consultation” where the agency retains
“discretionary federal involvement or control” over the action and one of the
following occurs: (1) “new information reveals effects of the action that may affect
listed species or critical habitat in a manner or to an extent not previously
considered;” or (2) an agency lists a new species or designates new critical habitat
that may be affected by the identified action. Cottonwood¸789 F. 3d at 1086 (citing
50 C.F.R. § 402.16)). The Ninth Circuit in Cottonwood determined that “[t]he 2009
revised critical habitat designation clearly meets the requirements of [the
subsections set forth] above.” Id.
The Court explained that the agency could not rely on project-specific
consultations when that consultation would rely on the Lynx Amendment and the
2007 Biological Opinion. Id. at 1082. Agencies performed those analyses before
FWS designated National Forest lands as critical lynx habitat. Id. The Court also
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noted that project-specific consultations that fail to “include a unit-wide analysis
comparable in scope and scale to consultation at the programmatic level” could
comply with the ESA when they properly incorporate previously completed
programmatic analysis through a tiered approach. Id. For instance, consultation for
the timber projects in the region at issue need not include their own programmatic
analysis if the consultation incorporates programmatic analysis from a proper Lynx
Amendment consultation. The Supreme Court of the United States has declined to
review the Ninth Circuit’s decision in Cottonwood. As a result, the Ninth Circuit’s
ruling remains.
The Ninth Circuit recently affirmed a need for reconsultation of the Lynx
Amendment in Alliance for the Wild Rockies v. Christensen, 2016 WL 6465748
(9th Cir. 2016). The Ninth Circuit determined that the Forest Service’s failure to
reinitiate consultation on the Lynx Amendment violated the procedural
requirements of the ESA. Id. The Court enjoined two timber projects on the
Gallatin National Forest until the reinitiation on the Lynx Amendment could be
concluded, and that analysis could be incorporated in a new consultation on the
two projects. Id. The Court so determined “because the habitat assessments for the
projects . . . rel[ied] on the pre-designation version of the Lynx Amendments.” Id.
Conversely, when the Forest Service has analyzed impacts on the lynx
independent of the Lynx Amendment, this court has found no ESA procedural
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violation. Alliance for the Wild Rockies v. Weber, 979 F. Supp. 2d 1118, 1132-36
(D. Mont. 2013). Similar to the project at issue, the Forest Service in Weber relied
directly on the primary constituents of lynx habitat, which were obtained from the
rule designating critical habitat. Id. at 1136. The Court decided Weber, however,
before Cottonwood or Christensen fully established the need to reinitiate
consultation on the Lynx Amendment.
Weber can be distinguished further from the case at issue because the
projects in Weber were not set to occur in occupied Lynx habitat. Id. at 1132. The
projects were also non-commercial and required no new roads or heavy equipment.
In contrast, the timber project at issue in this case would take place wholly in
occupied Lynx critical habitat. (FS000561, FS000951.) The Project also authorizes
the construction, re-construction, or maintenance of 19 miles of roads and the
commercial logging of 1,051 acres. (FS000027, FS000472.) This court in Weber
found the non-commercial, non-invasive nature of the projects at issue important in
determining that “the standards from the Lynx Direction do not need to be
analyzed to comply with the ESA.” Weber, 979 F. Supp. 2d at 1133.
Cottonwood counsels that the Lynx Amendment needs to be analyzed in this
case. The Ninth Circuit warned in Cottonwood that “project-specific consultations
do not include a unit-wide analysis comparable in scope and scale to consultation
at the programmatic level.” Cottonwood Envtl. L. Ctr., 789 F.3d at 1082. Given
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that the Forest Service has relied solely on the critical habitat rule in its analysis, it
has failed to incorporate the programmatic analysis that the Lynx Amendment
consultation provides.
In light of the Ninth Circuit and this court’s rulings in Cottonwood, Weber,
and Christensen and the relative intensity of this project, the Court determines that
the Project’s consultation requires incorporation of a programmatic analysis.
Incorporation of a programmatic Lynx Amendment consultation will be lawful,
however, only after the reinitiated consultation on the Lynx Amendment has been
completed. The FWS’s reasons for listing the Lynx as threatened under the ESA
supports the Court’s determination on this issue. The FWS “found that Federal
land management plans did not adequately address risks to lynx and . . . that plans
allowed actions that cumulatively could result in significant detrimental effects to
lynx.” 68 FR 40076-01 (July 3, 2003). The USFS has failed to analyze cumulative
effects in this case because it has not relied on the programmatic analysis from the
Lynx Amendment, or a forest plan that incorporates a properly consulted Lynx
Amendment.
B. Irreparable Harm
Alliance has asked the Court to enjoin the Project until the Federal
Defendants have completed consultation on the Lynx Amendments. Federal
Defendants argue that Alliance has failed to show irreparable harm. Federal
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Defendants assert that, even if the Court finds an ESA procedural violation, the
Court cannot grant an injunction without Alliance’s showing of irreparable harm.
This Circuit has addressed its injunction and irreparable harm standards in ESA
cases in recent case law.
The Ninth Circuit long has recognized that ESA cases that involve alleged
procedural violations require an exception to the traditional test for injunctive
relief. Thomas v. Peterson, 753, 764 (9th Cir. 1985), abrogation recognized by
Cottonwood, 789 F.3d 1075. The Ninth Circuit in Thomas determined that, similar
to the principle that the Circuit had applied to NEPA cases, irreparable damage
presumably flows from a procedural ESA violation. Id. The Court further
explained that the plaintiff did not bear the burden to prove “the effect of a
proposed action on an endangered species” when an agency has failed to follow
proper procedure. Id. at 765.
The Ninth Circuit re-visited its injunctive relief standards after the Supreme
Court’s opinions in Winter v. Nat. Resource Def. Council, Inc., 555 U.S. 7 (2008)
and Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010). See Cottonwood
Envtl. L. Ctr., 789 F.3d 1075. The Supreme Court rejected the Ninth Circuit’s
preliminary injunction standard in NEPA cases as “too lenient.” Winters, 555 U.S.
at 22. The Ninth Circuit had allowed a preliminary injunction when irreparable
harm proved “possible.” Id. Winters determined that a plaintiff seeking preliminary
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injunction must show that irreparable harm proves “likely in the absence of an
injunction.” Id. Monsanto disapproved of Ninth Circuit cases that applied the
presumption that an injunction represented the appropriate remedy in a NEPA
violation except for unusual cases. Monsanto, 561 U.S. at 157.
In light of the Supreme Court’s opinions, the Ninth Circuit determined in
Cottonwood, that the presumption recognized in Thomas no longer represented
good law. Cottonwood Envtl. L. Ctr., 789 F.3d at 1092. The Court noted that its
determination did not affect the Supreme Court’s holding that the equities and
public interest factors always tip in favor of the protected species. Id. at 1091. The
Court also explained that district courts should consider “the purposes and
objections of the ESA” for “fundamental direction” when “confronted with a
request for injunctive relief to remedy a procedural violation of the ESA.” Id. at
1092. The Court vacated the district court’s denial of plaintiffs’ injunctive relief to
allow the plaintiff to make a showing of irreparable injury. Id.
This Court has applied a burden-shifting approach to ESA cases where the
plaintiff has sought injunctive relief. Alliance for the Wild Rockies v. Krueger, 950
F.Supp.2d 1196 (2013); Salix v. United States Forest Service, 944 F.Supp.2d 984
(2013). The burden shifting approach allows the agency to put on evidence that the
“action will not jeopardize the species or destroy or adversely modify its critical
habitat,” after the plaintiff has made an initial showing of irreparable harm.
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Krueger, 950 F. Supp. 2d at 1204. The Court developed the burden-shifting
approach to reconcile the presumption in Thomas with Ninth Circuit case law that
held that plaintiff carried the initial burden to show irreparable harm. Id. at 1201.
Recently however, the Ninth Circuit has issued further guidance on the
irreparable harm standard through its decision in Christensen. The Ninth Circuit
determined that the district court had erred in presuming irreparable injury, but that
the error proved harmless. Christensen, 2016 WL 6465748. The Court was
satisfied that the plaintiffs had suffered irreparable harm because they “use[d] the
project areas for wildlife viewing.” Id. The Ninth Circuit did not enter into the
burden shifting approach, and, in fact, stated that the district court’s use of this
approach was error. Id.
The Plaintiff organization’s members have stated that the Project will
irreparably harm “their interests in looking for, viewing, studying, and enjoying . . .
lynx, . . . undisturbed in their natural surroundings.” Declaration of Michael
Garrity, ¶ ¶4, 6 (January 12, 2016). Plaintiff’s showing of irreparable harm appears
to be remarkably similar to the plaintiff’s sufficient showing in Christensen. The
Court is satisfied that the Plaintiff organization would suffer irreparable harm were
the project to go forward.
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Accordingly, IT IS ORDERED:
Plaintiff’s motion for Preliminary Injunction is GRANTED on the following
terms: the Project is enjoined until reinitiation of consultation on the Lynx
Amendment is completed and Project-level consultation incorporating the Lynx
Amendment analysis is also completed.
DATED this 22nd day of November, 2016.
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