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Native Ecosystems Council v. Krueger

United States District Court, Ninth Circuit

May 24, 2013

FAYE KRUEGER, Regional Forester of Region One of the U.S. Forest Service; UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture, and U.S. FISH AND WILDLIFE SERVICE, an agency of the U.S. Department of Interior, Defendants.


DANA L. CHRISTENSEN, Chief District Judge.

Plaintiffs filed suit in February 2012 seeking judicial review of the United States Forest Service's Decision Notice and Finding of No Significant Impact (FONSI) authorizing implementation of the Fleecer Mountains Project ("Project") on the Beaverhead-Deerlodge National Forest ("the Forest"). Plaintiffs also challenge the Record of Decision and corresponding documents authorizing the implementation of the Revised Beaverhead-Deerlodge National Forest Land and Resource Management Plan ("Forest Plan" or "Plan").

Plaintiffs claim the Project and the Forest Plan violate Section 7 of the Endangered Species Act ("ESA") because the United States Forest Service ("Forest Service") failed to complete consultation with the United States Fish and Wildlife Service ("Wildlife Service") about the potential affects of the Project and Plan on grizzly bears and Canada lynx. They also claim the Project and Forest Plan violate the National Forest Management Act ("NFMA") and National Environmental Protection Act ("NEPA") in various ways. They contend the Environmental Assessment ("EA") for the Project failed to disclose and apply the best available science regarding elk, grizzly bears, and lynx; that the Forest Plan does not ensure elk, grizzly bear, and lynx viability; that the Forest Service predetermined that it would reach a finding of no significant impact for the Project; and that the Forest Service failed to disclose whether a point source water pollution permit was necessary for the Project and failed to consult with the State of Montana on this issue.

Defendants counter that they complied with their obligations under the ESA, NFMA, and NEPA, and also insist that Plaintiffs' allegations of standing are inadequate.

For the reasons discussed below, the parties' motions for summary judgment are granted in part and denied in part. As a threshold matter, the Court finds that Plaintiffs have standing to challenge both the Forest Plan and the Project. Summary judgment is also granted in favor of Plaintiffs on their claims under the ESA. The Court concludes that the case must be remanded to the Wildlife Service to consider whether lynx "may be present" in the Forest because the Wildlife Service improperly applied a stricter standard to that inquiry. Until the Wildlife Service conducts its analysis under the proper standard and the parties complete any consultation that might become necessary, the Project must be enjoined. The Forest Service's biological assessment of whether the Project "may affect" grizzly bears was also arbitrary and capricious, and a new biological assessment must be prepared.

Summary judgment is granted in favor of Plaintiffs on their claim that the Forest Plan's and Project's discussions of elk violate NEPA. Although the Forest Service did not act arbitrarily or capriciously in setting road density levels for the Forest, analyzing road density at the landscape and hunting unit scales, or defining secure areas for elk, the Court nevertheless finds that the Forest Service must supplement its EIS for the Forest Plan to explain or support, if possible, its decision to exclude temporary roads from the road density objectives and to correct the record to show that permitted and administrative roads are included in the objectives. The Project EA must also be supplemented with a full and fair discussion of the impact that temporary roads will have on elk during the Project's lifetime, an important aspect of the problem given the already high road density levels in the Project area.

Summary judgment is granted in favor of Defendants on Plaintiffs' claims that the Forest Plan and Project violate NEPA and NFMA in their consideration of Canada lynx. By incorporating the Lynx Direction and considering the impact of linkage and connectivity on wildlife including lynx, the Forest Service adequately considered the best available science and provided for the viability of lynx when developing the Forest Plan. The Project is consistent with the Plan's standards, and the Forest Service considered the Lynx Direction in its Environmental Assessment and Wildlife Report.

Summary judgment is also granted in favor of Defendants on Plaintiffs' claims that the Forest Plan and Project violate NEPA and NFMA in their consideration of grizzly bears. The Forest Plan includes enforceable standards and guidelines in the form of road density levels and secure area designations that are consistent with the best available science. A supplemental Environmental Impact Statement ("EIS") is not required under Norton v. S. Utah Wilderness Alliance ("SUWA "), 542 U.S. 55, 73 (2004), unless the Forest Service decides upon concluding consultation with the Wildlife Service that the Forest Plan needs to be amended. The Project's Environmental Assessment is properly tiered to the Forest Plan, and the Forest Service did not fail to disclose and apply any science that was not adequately considered and disclosed when the Forest Plan was developed.

Summary judgment is also granted in favor of Defendants on Plaintiffs' remaining two arguments. The FONSI was not predetermined, and the Forest Service was not required to obtain a NPDES permit for stormwater runoff.


The Fleecer Mountains Project is a timber sale or salvage project planned for an area northwest of Wise River, Montana, in the Beaverhead-Deerlodge National Forest. FP:A01:1.[1] The Project area is in the Fleecer watershed and encompasses 102, 424 acres, including private lands and 98, 769 acres of National Forest Service lands within the Beaverhead-Deerlodge National Forest. Id.

According to the Forest Service's Decision Notice, the goals of the Project are to improve forest conditions in the area, supply wood products to the forest products industry, and secure habitat for westslope cutthroat trout. Id. About 95 percent of the lodgepole pine stands in the Project area have been affected by mountain pine beetle. Id. Many of the trees are dead or dying, and the value of the wood as a commercial product decreases as the wood deteriorates. Id. Additionally, Douglas Fir trees are dying due to recent drought conditions and dense stand conditions, which make the trees more susceptible to the western spruce budworm. Id. at 2. The Forest Service also aims to address the encroachment of Douglas fir on to grassland and sagebrush parks that were free of conifers historically and to improve the growing conditions and stand resiliency of Douglas fir by reducing stand density. Id. Removing conifers is expected to promote riparian-associated aspen stands, which have decreased in patch size and distribution. Id. at 3. Finally, the Project involves establishing new fish-movement barriers and replacing culverts in two creeks in order to secure westslope cutthroat trout habitat, which is threatened by competition from nonnative fish populations. Id.

Plaintiffs' claims concern three species: lynx, grizzly bear, and elk. The Forest is classified as unoccupied by lynx, but potential linkage areas have been identified on the north end of the Project area to the Anaconda Mountains and Anaconda-Pintler Wilderness and to the southwest to the Pioneer Mountains. FP:A02:96. The grizzly bear is the only federally listed wildlife species known to occur in the Forest; grizzlies have recently been sighted on the north end of the Forest and have been documented in the John Long Mountains, the Anaconda Range, and the Flint Creek Range. Id. at 99. While there are no reports of grizzlies in the Project area itself, the area has "fairly good connectivity" with the Anaconda-Pintler Wilderness, where there have been several recent sightings of grizzlies. Id. at 101. Elk are found throughout the Project area, which includes hunting units 319 and 341. Id. at 121.

Additional facts in the record are discussed as they become relevant in the analysis below.


I. Standing

A plaintiff must have standing in order to present a justiciable case under Article III of the United States Constitution. Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009). An organizational plaintiff has standing to sue if at least one identified member would have standing to sue in his or her own right, the "interests at stake are germane to the organization's purposes, " and the member's participation is not necessary to the claim or the relief requested. Friends of the Earth, Inc. v. Laidlaw Envtl. Srvcs. (TOC), Inc., 528 U.S. 167, 181 (2000); Summers, 555 at 498. Three elements are essential to member standing: injury in fact, causation, and redressability. An "injury in fact" must be "(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Friends of the Earth, Inc., 528 U.S. at 180-181 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)). Additionally, the injury must be "fairly traceable to the challenged action" and likely to be redressed by a favorable decision. Id.

To establish an injury in fact, an organization must show, through specific facts, Fed.R.Civ.P. 56(e), that at least one member has concrete and personal interests, connected to specific, affected areas of the environment, that have been or will be directly harmed by the challenged government action. Summers, 555 U.S. at 493, 498 (citations omitted). Alleging generalized harm to the environment is not sufficient, but an affidavit showing that an alleged environmental harm "affects the recreational or even the mere esthetic interests" of a member will suffice. Id. at 493 (citation omitted). The affiant must demonstrate "a connection to the area of concern, " White Tanks Concerned Citizens, Inc. v. Strock, 563 F.3d 1033, 1038-1039 (9th Cir. 2009) (citation omitted), and aver that he or she has used an area and has "specific and concrete" plans to return. Summers, 555 U.S. at 495.

It is not sufficient for members to declare they use unspecified portions of a large area, which may or may not be affected by the challenged activity. Lujan v. Natl. Wildlife Fedn., 497 U.S. 871, 887-89 (1990). Members must name specific, affected subareas that they use and enjoy in order to demonstrate a particularized threat of injury. W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 484 (9th Cir. 2011), cert. denied, 132 S.Ct. 366 (2011) (citation omitted). This requirement, however, does not prevent plaintiffs from challenging actions with wider geographic effects such as a forest-wide plan. Summers, 555 U.S. at 495.

Here, Plaintiffs have submitted the declaration of Michael Garrity, the Executive Director of Plaintiff Alliance for the Wild Rockies ("the Alliance").[2] Though much of Garrity's affidavit is "conclusory and completely devoid of specific facts, " Lujan, 497 U.S. at 898, it nonetheless provides a sufficient factual basis to support standing. Garrity alleges that he has used the Fleecer Mountains Project area for "vocational and recreational purposes" including "wildlife observation and study, hiking, camping, and quiet contemplation in nature." (Doc. 16 at 2, 4.) He "intend[s] to continue to use and enjoy the lands within the Beaverhead-Deerlodge National Forest and Fleecer Mountains area, frequently and on an ongoing basis in the future" and plans "to continue to visit the area, including in the spring/summer of 2013, 2018, and 2023." ( Id. at 3.) He alleges he will be unable to pursue his recreational interests in the area if the Project goes forward due to "logging, burning, road-building, road use, road reconstruction, etc[.]" (Id.) These "ecological and esthetic degradations will render the area unsuitable" for his prior uses of the area. ( Id. )

Citing Lujan v. National Wildlife Federation, the Forest Service insists that Garrity should have identified the subareas of the Forest and Project area that he used more specifically. In Lujan, the plaintiff expressed an interest in a two-million acre area, but the site-specific project at issue only affected a 4, 500-acre area within that; it was not clear the plaintiff was likely to suffer an injury in fact. 497 U.S. at 886-87. Here, the "Fleecer Mountain Project area" is specific enough. By alleging he has recreated and worked in the Project area itself, Garrity has shown that he "use[s] the area affected by the challenged activity and not an area roughly in the vicinity of the project site." Summers, 555 U.S. at 499. Though the Project area encompasses over 100, 000 acres, it is a specific timber sale project in an area defined by the Forest Service that Garrity has visited and plans to use again. "Vegetation treatment" (clearcutting, commercial, precommercial, and noncommercial thinning, and conifer removal) will occur on some 3, 043 acres of the Project area, FP:A01:4, which are distributed widely over the eastern half of the Project area, see id. at 49, and more sporadically over the western half of the Project area, see id. at 47. Additionally, the Project will involve opening temporary roads, reopening some closed roads, closing some roads and trails to the public, and burning, and the Forest Service recognized in its Environmental Assessment for the Project that the "sounds and sights attributed to harvest activity such as timber falling, log hauling, noise, dust, and occasional road delays" are likely to affect people enjoying various forms of dispersed recreation in the area. FP:A02:241. Even if the Court were to adopt the Sixth Circuit's decision in Heartwood, Inc. v. Agpaoa, 628 F.3d 261, 268 (6th Cir. 2010), rehg. denied (May 11, 2011), that standing requires plaintiffs to "identify particular segments of a river, sections and sub-sections of a forest, or passes in a mountain range that they use and will continue to use, and that agency action will detrimentally affect, " Garrity has expressed a legally protected interest in an area specific enough to establish standing,


Plaintiffs claim that Defendants violated section 7 of the Endangered Species Act, the "heart of the ESA, " W. Watersheds Project, 632 F.3d at 495, by failing to consult with the Wildlife Service to evaluate the consequences of the Forest Plan and the Fleecer Mountains Project on grizzly bears and lynx. 16 U.S.C. § 1536(a)(2). Section 7 requires an agency to ensure that no discretionary action will "jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species." 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.12(a). "Only after the [agency] complies with § 7(a)(2) can any activity that may affect the protected [species] go forward." P. Rivers Council v. Thomas, 30 F.3d 1050, 1055-57 (9th Cir. 1994).

The Forest Service's first step in complying with section 7 is to obtain from the 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)(1); 50 C.F.R. § 402.12(c)-(d) (emphasis added). If the 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)(1); 50 C.F.R. §§ 402.12 (f), 402.14(a), (b)(1); Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir. 2006). Once the biological assessment is completed, it must be shared with the Wildlife Service. 50 C.F.R. § 4012.12(j). "If [the Wildlife Service] advises that no listed species or critical habitat may be present, the Federal agency 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., 681 F.3d 1006, 1027 (9th Cir. 2012). The Ninth Circuit holds that "the minimum threshold for an agency action to trigger consultation with the Wildlife Service is low." W. Watersheds Project, 632 F.3d at 496. "[A]ny possible effect, whether beneficial, benign, adverse, or of an undetermined character, triggers the formal consultation requirement." Id (citing 51 Fed. Reg. 19, 949; Cal. ex rel. Lockyer v. US. Dept. of Agric., 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 obligatory where the Forest Service has determined that an action is "likely to adversely affect" a listed species. But it 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 Wildlife Service concurs in writing. 50 C.F.R. §§ 402.12(j)-(k), 402.14(b)(1), 402.13(a).

The Administrative Procedure Act governs review of agencies' actions under section 7. W. Watersheds Project, 632 F.3d at 496 (citation omitted). The Court must determine whether the agencies' actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. (citation omitted). "Deference to an agency's technical expertise and experience is particularly warranted with respect to questions involving scientific matters." United States v. Alpine Land & Reservoir Co., 887 F.2d 207, 213 (9th Cir. 1989). However, the "presumption of agency expertise may be rebutted if the decisions, even though based on scientific expertise, are not reasoned." Greenpeace v. NMFS, 80 F.Supp.2d 1137, 1147 (W.D. Wash. 2000).

A. Lynx

In the instant case, in compliance with section 7(c) and 50 C.F.R. § 402.12(c)-(d), the Wildlife Service provided the Forest Service a list of threatened or endangered species that "may be present on the Beaverhead-Deerlodge National Forest." FP:I13-20; 50 C.F.R. § 402.12(c)-(d) (emphasis added). Though the Canada lynx is listed as a threatened species under the ESA, FP:X-04:2, the Wildlife Service did not include lynx on the "may be present" list on the grounds that the Forest is not "occupied" by lynx. Thus, the Forest Service reasoned it was not required to prepare a biological assessment or pursue further consultation regarding the possible effects of the Forest Plan or Project on lynx. 50 C.F.R. § 402.12(d). Because the Forest Service concluded it was not required to prepare a biological assessment, the Wildlife Service's obligation to issue a written concurrence was not triggered.

Plaintiffs insist that the Wildlife Service's decision to import the definition of "occupied" habitat into the ESA's "may be present" standard was arbitrary and inconsistent with the plain meaning and purposes of section 7 of the ESA. They point to numerous pieces of information that could support a finding that lynx "may be present" on the Forest even if they do not "occupy" it. Defendants counter that the agency's interpretation of ESA's "may be present" standard was rational and is entitled to deference. They claim that occupancy is relevant because lynx are highly mobile and can occur in isolated instances far from lynx populations and that the other evidence Plaintiffs argue they should have considered is stale and unreliable.

The Wildlife Service's determination was based at least in part on a series of interagency agreements between the Forest Service and the Wildlife Service and the agencies' interpretation of those agreements.[3] After the lynx was listed as a threatened species in 2000, the Forest Service, the Wildlife Service, and the Bureau of Land Management entered an interim agreement, the Lynx Conservation Assessment arid Strategy, to guide lynx conservation actions on federal land. BDNF:L1-280. In 2006, the Wildlife Service and the Forest Service agreed to an amendment that defined the requirements for occupancy, identified occupied lynx habitat, and determined that management guidelines were only required to be implemented in occupied habitat. BDNF:L1-333. They also agreed the Beaverhead-Deerlodge National Forest was unoccupied. Id. In 2007, the Forest Service published the Northern Rockies Lynx Management Direction ("Lynx Direction"), which superseded the prior agreements. BDNF:L1-370; FP:H-14.

The Lynx Direction incorporated the 2006 amendment's definition for occupancy. For a forest to be deemed occupied, there must be 1) two verified lynx observations since 1999 "unless they are verified to be transient individuals" or 2) evidence of reproduction in the area. Id. at 33. The Lynx Direction classified the Forest as unoccupied, secondary lynx habitat. FP:H-14:11, 33, 45.

The Lynx Direction notes that the role of unoccupied, secondary lynx habitat in sustaining lynx populations is "unclear." Id at 36, 45.

The fluctuating nature of lynx population dynamics and the ability of lynx to disperse long distances have resulted in many individual occurrence records outside of core areas, without accompanying evidence of historic or current presence of lynx populations. Areas classified as "secondary areas" are those with historical records of lynx presence with no record of reproduction; or areas with historical records and no recent surveys that document the presence of lynx and/or reproduction.... [The Wildlife Service] hypothesizes that secondary areas may contribute to lynx persistence by providing habitat to support lynx during dispersal movements or other periods, allowing animals to then return to "core areas."

Id. The Forest Service conceded in the Lynx Direction that "management actions could adversely affect unoccupied secondary lynx habitat" and that "if and when lynx attempt to establish home ranges in secondary areas, individual lynx could be affected." Id. at 37-39. However, it concluded that there is "no evidence" to suggest that unoccupied secondary habitat is necessary to the viability of lynx populations. Id. at 45. Thus, the Forest Service determined that the Lynx Direction "shall" be applied in occupied, core habitat, but need only be "considered" in unoccupied secondary areas. Id. at 35, 42.

The Lynx Direction anticipated that the Wildlife Service would not include lynx on species lists for forests deemed unoccupied, because the Wildlife Service did not include lynx on species lists for unoccupied forests under the 2006 amendment. Id. at 33. In a memorandum regarding the 2006 amendment, the Wildlife Service advised Ecological Services Project Leaders that "the lynx should not appear on species lists for proposed Federal actions on national forests determined to be unoccupied by lynx.... Compliance with section 7(a)(2) of the Endangered Species Act is not required for the lynx under this circumstance." FWS:XXXXXX-XX.[4] Defendants do not point to similar guidance provided after the 2007 Lynx Direction was published, but argue that the Wildlife Service followed the same policy. Doc. 22 at 32-33; doc. 25 at 20.

If "the agency has chosen a definition that comports with the text and purposes of the [ESA] and is not decidedly irrational, it is not [the Court's] place to second-guess its judgment." Bassiri v. Xerox Corp., 463 F.3d 927, 933 (9th Cir. 2006). The problem here is that the Wildlife Service has imported into section 7 of the ESA a standard-the definition of "occupied" habitat-that is inconsistent with the statutory and regulatory language. The "may be present" standard is, on its face, much broader than the Wildlife Service's requirement that a forest "be occupied" by the species. The Forest Service all but admits that lynx may be present on the Forest. See e.g. FP:A02:343 ("The analysis in the EA does not state that lynx do not occur in the mountain range. What it says is that the Forest (and project area) is currently considered unoccupied' by the USFWS."); BDNF:L1-370:36-39 (recognizing that unoccupied secondary areas provide connectivity and linkages for lynx between core areas as well as foraging habitat). Similarly, the Wildlife Service, in its Biological Opinion on the Lynx Direction, emphasized that unoccupied habitat should be managed to "continue[] to facilitate and allow dispersal of lynx" and to "avoid or reduce effects on lynx." BDNF:L1-384; BDNF:L1-370:39. Thus, both agencies recognize that lynx may "occur, " travel through, or forage in "unoccupied" areas, and that management actions in unoccupied areas may affect those transient lynx as well as any lynx attempting to establish new home areas.

If a species "may" be present, the ESA obligates the agency to perform a biological assessment or inter informal consultation with the Wildlife Service to ensure that the proposed action will not adversely affect the species. Defendants have not provided a reasoned basis for its construction that the "may be present" standard requires occupancy. The Wildlife Service itself, analyzing section 7, once rejected the argument of a commenter who urged the Service "to include only species actually known or believed to occur in the action area":

The Service agrees that the species list should be tailored to the action area and that field personnel should take care that the list is not overinclusive. However, the Act requires the Service to provide a list of all listed or proposed species that "may be present" in the action area. Thus, migratory species that "may be present" at some point within the action area must be included in the species list.

Interagency Cooperation-Endangered Species Act of 1973, as Amended; Final Rule, 51 FR 19926-01 (Jun. 3, 1986). Defendants now attempt to distinguish this response by distinguishing "migratory species" from transient species like the lynx, but the focus of the commentary was not limited in this manner. The Wildlife Service clearly rejected a standard which would require a species to be "actually known or believed to occur" in an area because it would conflict with the statutory language.

Although evidence of the presence of lynx in the Forest is not overwhelming, some evidence nevertheless exists that lynx may be present. Specifically, Squires et al. (2003), documented one set of lynx tracks in 2001 in the Anaconda range, part of which lies within the Big Hole landscape area, which is within the analysis area for wildlife security for the Project. Berg (2009) identified "possible" and "probable" lynx tracks in the Forest. Additionally, Berg found that though "most of the BDNF was... likely not good lynx habitat, " there were "significant exceptions" to this. FWS:004347. For example, "[r]esident lynx may have been present in the West Fork/Middle Fork Rock Creek vicinity" given the abundance of snowshoe hare and forest structure, and "habitat was also pretty good in the Pioneer Mountains." Id. Berg also concluded:

The West Fork/Middle Fork Rock Creek and MacDonald Pass areas are likely important stepping stones' for lynx that may move between currently occupied habitat for this species in northwest Montana and the Greater Yellowstone Ecosystem.... [I]t is very likely that lynx were present on MacDonald Pass on the Helena NF, which is just north of the BDNF [and lynx] that use the MacDonald Pass area may also use adjacent forests on the BDNF.

Id. A 2003 Wildlife Service map also suggests the Forest may be within the range of resident and dispersing lynx, FP:O-04: 264, and radio-collared lynx are actually known to have traveled through mountain ranges in the Forest, though they did not stay in the Forest for long, FP:J075a:3.

None of this evidence is reliable enough to fit the criteria for "occupancy, " and other evidence cited is arguably stale. But the Wildlife Service's decision to reject the evidence entirely is arbitrary and capricious, particularly considering the Wildlife Service's earlier position that the "may be present" standard does not require actual occurrence. On its face, the question of whether lynx "may be present" in an area is less rigorous than the question of whether lynx "occupy" an area. Applying the occupancy definition to the first step in the process "create[s] a metric more stringent than, and contrary to, what the ESA dictates." Alliance for Wild Rockies v. Lyder, 728 F.Supp.2d 1126, 1137 (D. Mont. 2010).

Of course, the Wildlife Service's construction is expedient-the agencies undoubtedly anticipate that they would conclude that an action in an unoccupied area that allegedly complies with the Lynx Direction would not adversely affect the lynx-but that does not permit the agencies to take the procedural shortcut that has occurred here. The agencies must first determine whether a species "may be present, " under a reasonable interpretation of the Act's plain language. Only then should they consider the likelihood that the species will be affected, and that inquiry should be based on the performance of a biological assessment or informal consultation. Because the Wildlife Service substituted its "occupancy" standard for the ESA's "may be present" standard, the agencies did not enter into informal consultation or have the opportunity to agree in writing that the action is "not likely to adversely affect" the lynx, despite the fact there is some evidence that lynx "may" be in the area. 50 C.F.R. § 402.13(a).

In summary, the Wildlife Service's "occupancy" standard bypasses the procedural protections of section 7, allowing it to ignore any evidence that does not fit the more rigorous standard. The agencies' interagency agreement to reach this result in unoccupied areas cannot override the statutory and regulatory language of the ESA or the Ninth Circuit's direction that "the minimum threshold for an agency action to trigger consultation with the Wildlife Service is low, " W. Watersheds Project, 632 F.3d at 496, and "any possible effect, whether beneficial, benign, adverse, or of an undetermined character, triggers the formal consultation requirement." Id. (citations omitted). Accordingly, the Project must be enjoined until the Wildlife Service reconsiders its listing determination in accordance with this opinion.

B. Grizzly Bears

At the time the Forest Plan was issued in January 2009, consultation on the grizzly bear was not required under section 7 because the grizzly bear was not listed as an endangered or threatened species. FP:H-05:1. But on September 21, 2009, the Wildlife Service was ordered to reclassify the Yellowstone Distinct Population Segment as threatened. Id. at 2. The Wildlife Service prepared a new species list for the Forest, listing the grizzly bear as a species that "may be present." Id.

As required, the Forest Service prepared a Biological Assessment for the Grizzly Bear ( Ursos arctos horribilis ) for the Beaverhead-Deerlodge Revised Forest Plan (2009), recognizing that a revised (or first) biological assessment is required if a newly listed species may be present in an area affected by a continuing agency action. FP:H05:01. The Biological Assessment only analyzed the four areas within the Forest that lie within the Yellowstone Distinct Population Segment (DPS) area as defined by the Wildlife Service. Id It concluded that "[w]hile individual resource effects are expected to be minimal, implementation of the [Forest Plan] across the spectrum of resource areas is likely to adversely affect the threatened grizzly bear."[5] Id. at 2 (emphasis in original).

The Forest Service initiated formal consultation when it provided its biological assessment to the Wildlife Service in August 2010. FP:H06:6. As required, the Wildlife Service then prepared a biological opinion, likewise limiting its analysis to areas where grizzlies were deemed likely to be present:

For the purposes of this biological opinion, we have defined the action area to be the areas on the Forest where grizzly bears occur both inside and outside of the YGBE recovery zone or are likely to occur at sometime within the life of the Revised Forest Plan (10 to 15 years). The action area is within the Butte, Madison, and Jefferson Ranger Districts and includes approximately 897, 526 acres within four landscape areas including the Gravelly Landscape (474, 610 acres), the Madison Landscape (127, 132 acres), the Tobacco Root Landscape (187, 523 acres), and the Highland Mountains Landscape (108, 261 acres). Portions of the Madison Landscape occur within the YGBE recovery zone.

FP:H06:15. The Wildlife Service concluded that though the Forest Plan would result in incidental take of individual bears "due to the Revised Forest Plan direction for access management, sanitation/food storage and livestock grazing, " it would not jeopardize the likelihood of grizzly bear survival or recovery. Id. at 46. The Forest Plan, as applied to the areas analyzed, thus passed section 7 muster.

Since then, there have been verified grizzly bear observations in areas outside the action area as it was defined in the 2010 biological opinion. Since the Complaint in this case was filed, the Forest Service has reinitiated consultation to consider the effects of the Forest Plan on grizzly bears in the remaining Forest areas. (Doc. 22 at 34.)

Plaintiffs argue that Defendants were required to engage in section 7 consultation for the Forest Plan as a whole and the Project specifically.

1. Consultation on the Forest Plan

By reinitiating consultation on the Forest Plan, the Forest Service has rendered moot at least portions of the Plaintiffs' third claim for relief. That claim asks the Court to enjoin the Project and declare that it violates the law (doc. 1 at 31) based on the Defendants' failure to 1) complete a biological assessment and biological opinion on the Forest Plan for the entire Forest, using current information concerning possible grizzly bear distribution, and 2) amend the Forest Plan to provide measures aimed at recovering and conserving the grizzly bear population in the Forest ( id. at 24). Plaintiffs do not challenge the 2009 Biological Assessment or 2010 Biological Opinion insofar as they concern the action area analyzed; their concern is that other areas of the Forest should have been analyzed as well. Because this will occur in the reinitiated consultation, and because Plaintiffs point to no possibility of continuing violations, declaratory relief concerning the initial consultation and injunctive relief requiring further consultation is unnecessary. Defenders of Wildlife v. Martin, 454 F.Supp.2d 1085, 1102-04 (E.D. Wash. 2006) (citing, among other cases, Forest Guardians, 450 F.3d at 462). Thus, these issues are moot.

However, the Project must be enjoined until Defendants complete the reinitiated consultation for grizzly bears. It is "well-settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements." Wash. Toxics Coalition v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005). Section 7 provides that "[a]fter initiation of consultation required under subsection (a) (2) of this section, the Federal agency... shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a) (2) of this section." 16 U.S.C. § 1536(d).

Plaintiffs have met their threshold burden to obtain injunctive relief. Through this Order, they have shown actual success on the merits of their claim, and they have demonstrated a likelihood of irreparable harm absent injunctive relief. The record contains ample evidence that the Project will impact the Fleecer Project area in ways that are known to affect grizzly bears, including the development of new roads and "disturbance effects" during the Project's lifetime. Timber sales constitute per se irreversible and irretrievable commitments of resources under § 7(d). P. Rivers Council, 30 F.3d at 1057; Lane Co. Audubon Soc. v. Jamison, 958 F.2d 290, 295 (9th Cir. 1992). It is possible that changes to the Forest Plan, if deemed necessary through consultation, may alter the plan for the Project. If the Project went forward before consultation was completed, it could result in irreparable harm.

To avoid an injunction, the acting agency must prove the action is non-jeopardizing. Wash. Toxics Coalition, 413 F.3d at 1035. Requiring this proof of Defendants "is consistent with the purpose of the ESA and what [the Ninth Circuit has] termed its institutionalized caution mandate." Id. Defendants have not met this burden. The Forest Plan provides "management direction" for the Project, FP:A02:16, and the reinitiated consultation may result in changes to that direction. In summary, the Project cannot go forward until consultation on the effects of the Forest Plan on the grizzly bear is complete. It would constitute an irretrievable commitment of resources that might be contrary to the result of the consultation process and could lead to irreparable harm, and it would foreclose the implementation of alternative measures.

2. Consultation on the Project

Plaintiffs also argue that the agencies should have engaged in Section 7 consultation for the Project. (Doc. 15 at 15.)

a. "May be present" determination

It is not entirely clear whether Defendants recognized that grizzly bears "may be present" in the Project area. On one hand, the Forest Service recognized that grizzly bears "may be present" based on the Wildlife Service's 2010 and 2011 lists of threatened and endangered species that may be present in the Forest as a whole. FP:I13-5:14; FP:I13-20. Additionally, the Forest Service claims to have produced a biological assessment, which is only required if a species "may be present." On the other hand, the Forest Service argues that it did not determine that grizzlies "may occur" in the Project area (doc. 22 at 29), and it did not inquire of the Wildlife Service whether any listed species "may be present" in the Project area itself. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12 (the list should include species that "may be present in the action area ") (emphasis added); Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985) (citing 16 U.S.C. § 1536(c)(1)).

The Wildlife Report recognizes that grizzly bears have been documented in areas of the Forest other than the Yellowstone DPS distribution area. FP:I13-05:15. It notes that several grizzlies have recently "moved into" the area between the John Long Mountains, Flint Creek range, and Pintler range, which "has the capability of becoming a key grizzly linkage zone between the Boulder/Garnet mountain range complex and the Anaconda-Pintler ...

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