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Alliance For Wild Rockies v. Weber

United States District Court, D. Montana, Missoula Division

October 30, 2013

ALLIANCE FOR THE WILD ROCKIES, a non-profit organization, et al., Plaintiffs,
v.
CHIP WEBER, in his official capacity as Forest Supervisor for the Flathead National Forest, et al., Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Alliance for the Wild Rockies, a non-profit organization, Friends of the Wild Swan, a non-profit organization, Native Ecosystems Council, a non-profit organization, Plaintiff: Elizabeth W. Erickson, LEAD ATTORNEY, ERICKSON LAW OFFICE, Missoula, MT; Timothy M. Bechtold, LEAD ATTORNEY, BECHTOLD LAW FIRM, Missoula, MT.

For Chip Weber, in his official capacity as the Forest Supervisor for the Flathead National Forest, Faye Krueger, in her official capacity as Regional Forester for the United States Forest Service, Region One, United States Forest Service, an agency of the U.S. Department of Agriculture, United States Fish & Wildlife Service, an agency of the U.S. Department of Interior, Defendants: Julie Sharon Thrower, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Washington, DC; Robert P. Williams, LEAD ATTORNEY, Environment and Natural Resources Divisions, Wildlife & Marine Resources Section, U.S. Dept. of Justice, Washington, DC; Travis J. Annatoyn; Victoria L. Francis, OFFICE OF THE U.S. ATTORNEY, Billings, MT.

OPINION

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Dana L. Christensen, Chief United States District Judge.

Introduction

Plaintiffs filed suit on May 29, 2012, seeking judicial review of the U.S. Forest Service's Record of Decision pursuant to the Administrative Procedures Act, 5 U.S.C. § 706 permitting implementation of the Flathead National Forest Precommercial Thinning Project (" Project" ). Plaintiffs claim Defendants violate NEPA by approving the Project as a categorical exclusion despite extraordinary circumstances requiring an Environmental Assessment (" EA" ) or Environmental Impact Statement (" EIS" ). Specifically, Plaintiffs allege the Forest Service fails to analyze the Project's impacts to bull trout critical habitat and bull trout; fails to analyze the Wild and Scenic North Fork of the Flathead River under an extraordinary circumstances analysis; and fails to sufficiently analyze impacts on lynx and their critical habitat. Plaintiffs also claim the Forest Service violates the National Environmental Policy Act (" NEPA" ) by failing to take a hard look at the direct, indirect, and cumulative effects of the Project. Plaintiffs challenge the Project under § 7 of the Environmental Species Act (" ESA" ) as follows: the Forest Service's determination that the Project has no effect on bull trout is unsupported by the record; Defendants fail to specify where thinning will occur in relation to bull trout critical habitat; and Defendants' finding that the Project may affect but is not likely to adversely affect lynx and lynx critical habitat violates the ESA. Finally, Plaintiffs argue the Forest Service violates the National Forest Management Act (" NFMA" ) by failing to comply with the Inland Native Fish Strategy (" INFISH" ).

Defendants respond that the Project complies with NEPA because the Forest Service: sufficiently identified where Project activities would occur; provided appropriate Wild and Scenic River analysis; reasonably determined the Project is not likely to adversely impact lynx or lynx critical habitat; and is not required to consider cumulative impacts because categorical exclusions by definition do not have cumulative effects on the environment. Regarding the ESA, Defendants argue the biological assessment correctly concludes the Project will not effect bull trout or its habitat and the analysis of bank stability, temperature increases, and peak flows was sufficient. For lynx, Defendants contend the Forest Service did not mischaracterize matrix habitat, the Lynx Direction does not apply, and the Forest Service was not required to reinitiate consultation on the Forest Plan. Defendants lastly argue the Project complies with INFISH and thus the Project does not violate NFMA.

This Project is the most innocuous logging project to be challenged in this Court to date. The Project was dramatically reduced in scope following public comment, primarily by the Plaintiffs, from 12,563 acres to approximately 3,650 acres. Only 500 acres will be thinned per year. No roads will be reopened or created for Project

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use. Only hand trimming will be performed, with hand tools used near bull trout critical habitat. The trees that will be thinned fall far short of commercial size-most are one to five inches in diameter and only a few feet tall. In short, this Project, compared to the majority of projects that come before the Court, is truly designed to promote and restore forest health, and will benefit the endangered species inhabiting the Flathead National Forest. Plaintiffs' complaints are solely based on relatively insignificant alleged procedural missteps by the Forest Service, and they point to no actual or even reasonably potential harm the Project will cause to any of the relevant species. For these reasons, as well as the legal analysis to follow, Plaintiffs' motion for summary judgment will be denied and Defendants' motion will be granted.

Background

The Forest Service declares the purpose of the Project is to " promote stand health and vigor, restore western white pine stands by promoting genetically improved planted white pine, and to reduce future wildland fire risk and hazard by reducing hazardous fuels within the wild urban interface." (Doc. 20 at 2-3.) Defendants state that thinning results in an increase in the amount of moisture, sunlight, and nutrients received by the remaining trees in stands, and thus promotes disturbance-resistant species of trees. " Stands proposed to be thinned fall into two stand types: (1) post-fire second-growth stands in the wildland-urban interface that are dominated by three to- four-foot tall lodgepole pine trees at a density of approximately 10,000 to 100,000 stems per acre; and (2) 10 to 30-year old second growth stands dominated by mixed conifer trees growing at a density of approximately 1,000 to 5,000 stems per acre." FS 0772. The Project will retain hardwood trees when feasible and no treatments are planned in stands with mature or old trees. Id. The stands proposed for thinning do not contain trees of commercial size and the Project will not produce merchantable wood products. FS 0010. The thinning units vary between one and 181 acres in size and most units are less than 50 acres. FS 0011-13. Thinning is planned to occur at a rate of around 500 acres per year, and the Project began in July 2013 with thinning of slightly over 400 acres.

In November 2010, the Forest Service completed a biological assessment on bull trout which concluded the Project would have no effect on bull trout. FS 0226. In December 2010, the Forest Service completed a biological assessment for Terrestrial Wildlife Species concluding that the Project " may affect but is not likely to affect" grizzly bears, Canada lynx, or Canada lynx critical habitat. The Forest Service informally consulted with the Fish and Wildlife Service for the grizzly bear, bull trout, lynx, lynx critical habitat, and the then-listed gray wolf. The Fish and Wildlife Service agreed with the Forest Service's determinations and conclusions in the biological assessment that Project-related impacts to gray wolves, grizzly bears, Canada lynx, and designated critical habitat for Canada lynx would be insignificant. After receiving public comment, the scope of the Project was reduced from 12,563 acres to approximately 3,650 acres.

The Decision Memorandum determined the project was categorically excluded from analysis in an EA or an EIS pursuant to 36 CFR 220.6(e)(6) - " Timber stand and/or wildlife habitat improvement activities that do not include the use of herbicides or do not require more than 1 mile of low standard road construction." Plaintiffs timely appealed the Decision Memo, and Deputy Regional Forrester Thomas Schmidt denied the appeals on

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January 4, 2012. Plaintiffs filed a motion for preliminary injunction on June 22, 2013, which was denied July 31, 2013.

Analysis

I. NEPA

NEPA requires federal agencies to prepare a detailed environmental impact statement for actions that may significantly affect the environment. 42 U.S.C. § 4332(2)(C). Unlike NFMA, NEPA does not compel agencies to achieve particular environmental results. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Agencies instead must abide by NEPA's procedural requirements to " carefully consider" a project's environment impacts and make the relevant information available to the public. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). An EIS must provide a " full and fair discussion of significant environmental impacts," and inform " decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1.

Under NEPA, the Court must " simply [ ] ensure that the Forest Service made no 'clear error of judgment' that would render its action 'arbitrary and capricious.'" Lands Council v. McNair, 537 F.3d 981, 991 (9th Cir. 2008) (" Lands Council I " ), overruled in part on other grounds by Winter v. Nat. Resource Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). 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." Id. at 987 (citations and internal quotation marks omitted).

A. Categorical exclusion

A federal agency may adopt a " categorical exclusion" for a " category of actions which do not individually or cumulatively have a significant effect on the human environment." 40 C.F.R. § 1508.4. An action falling within an adopted categorical exclusion generally does not mandate preparation of an EIS or an EA. Id. However, an agency adopting a categorical exclusion must " provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect." Id. If such extraordinary circumstances exist, an EIS or an EA must be prepared.

Resource conditions that agencies should consider in determining whether extraordinary circumstances warrant further analysis and documentation in an EA or an EIS include, as relevant here: federally listed threatened or endangered species or designated critical habitat, species proposed for federal listing or proposed critical habitat, or Forest Service sensitive species; and Congressionally designated areas, such as wilderness, wilderness study areas, or national recreation areas. 36 C.F.R. § 220.6(b)(1). The mere presence of one of these conditions does not prohibit use of a categorical exclusion. § 220.6(b)(2). Rather, if a cause-effect relationship exists between the proposed action and the potential effect on the condition, the agency must analyze the degree of the potential effect to determine whether extraordinary circumstances exist. Id.

Defendants determined the Project was categorically excluded from analysis in an EA or EIS pursuant to 36 C.F.R. 220.6(e)(6) which excludes " [t]imber stand and/or wildlife habitat improvement

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activities that do not include the use of herbicides or do not require more than 1 mile of low standard road construction." An example of this type of categorical exclusion is " thinning or brush control to improve growth or to reduce fire hazard including the opening of an existing road to a dense timber stand." 36 C.F.R. 220.6(e)(6)(ii). The subject Project falls within this example.

Plaintiffs argue extraordinary circumstances are present in this case precluding the use of a categorical exclusion and requiring an EA or EIS. They contend that the Forest Service's failure to analyze whether the Project will impact bull trout critical habitat is arbitrary and capricious. Defendants argue they reasonably determined no extraordinary circumstances exist, and focus their arguments regarding categorical exclusion to the issue of whether their cumulative impacts analysis was appropriate.

" An agency's determination that a particular action falls within one of its categorical exclusions is reviewed under the arbitrary and capricious standard." Alaska Ctr. for Environment v. United States Forest Service, 189 F.3d 851, 857 (9th Cir. 1999). Prior to establishing a categorical exclusion, the agency is required to perform a scoping process to identify the significant issues related to the proposed action and judge the scope of the issues. Sierra Club v. Bosworth, 510 F.3d 1016, 1026 (9th Cir. 2007). During this process, the Forest Service must consider the cumulative impacts of connected, cumulative, and similar actions, and must prepare an EA if the project may have significant effects on the environment. Id. at 1027.

Here the Forest Service decided the Project properly fell within the categorical exclusion for " timber stand and/or wildlife habitat improvement activities that do not include the use of herbicides or do not require more than 1 mile of low standard road construction" pursuant to 36 C.F.R. § 220.6(e)(6). One of the examples of this type of exclusion is " thinning to improve growth or to reduce fire hazard including the opening of an existing road to a dense timber stand." 36 C.F.R. 220.6(e)(6)(ii). Plaintiffs do not challenge Defendants' decision on this point--because, again, the Project is a mirror image of the example listed at § 220.6(e)(6)(ii). Rather, Plaintiffs contend Defendants' analysis of extraordinary circumstances is flawed because the Forest Service failed to sufficiently analyze the cause and effect relationship between the Project and its effects on bull trout. (Doc. 19 at 24.) Defendants' analysis of bull trout and its critical habitat was not arbitrary or capricious, and Defendants did not err by determining the Project falls within a categorical exclusion for the reasons stated below.

1. Bull trout critical habitat

a. Inadequate maps

Plaintiffs argue that the agencies have not identified where project activities will occur in relation to bull trout critical habitat. As a result, Plaintiffs contend, the agencies' analysis of how the Project will affect bull trout critical habitat is flawed. The Forest Service has adequately identified where the precommercial thinning will take place in relation to critical bull trout habitat and Plaintiffs' claim fails on this issue.

In its Bull Trout Biological Assessment, the Fish and Wildlife Service describes the location of critical habitat for " 3 different bull trout core populations." FS 219. It also describes the major tributaries of these rivers, lakes that have bull trout populations, and areas that support bull trout spawning. Id. Also part of the record are eight maps showing the boundaries

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of the proposed precommercial thinning. ( See Doc. 14-1.) [1]

In light of this record, the Forest Service argues that Plaintiffs have not explained how a more detailed map would impact the analysis of effects on bull trout or bull trout critical habitat. The Forest Service is correct on this point. The maps are sufficiently detailed to allow Plaintiffs to identify where the precommercial thinning will take place. They identify the project boundaries down to the township and range level. (Doc. 14-1). The maps allow the Plaintiffs to identify where those activities will take place in relation to bull trout critical habitat.

Plaintiffs' main concern with respect to the maps appears to be that the maps do not identify specifically where thinning will take place within the 50-foot stream buffer. But, as the Forest Service explains, this identification is not necessary because special steps (on-site analysis by a fisheries biologist) will be taken within the buffer area to ensure that any thinning (which will be done by hand) will not have any effects on bull trout or their critical habitat. FS 223-25. The Forest Service has adequately identified where the precommercial thinning will take place in relation to critical bull trout habitat.

b. PCEs

Plaintiffs next argue that the agencies' bull trout analysis is inadequate because the Service did not consider the Project's potential effects on critical habitat in terms of the nine primary constituent elements (PCEs) for critical habitat. (Doc. 28 at 19-23.) Plaintiffs did not raise this argument until their reply brief. Generally, " legal issues raised for the first time in reply briefs are waived." Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990). However, because Defendants had the opportunity to reply to Plaintiffs' argument, the Court will consider it. Defendants respond that PCE analysis was not required, and the Bull Trout Biological Assessment sufficiently analyzed the impact of the Project because the stream characteristics examined overlap with the PCEs and the bull trout critical habitat rule.

The PCEs for critical habitat are the " physical or biological features" that are " essential to the conservation of the species" and " which may require special management considerations or protection." 16 U.S.C. § 1532(5)(A)(i); 50 C.F.R § 424.12(b). Section 424.12(b) outlines ...


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