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Friends of The Wild Swan v. Jewell

United States District Court, D. Montana, Missoula Division

August 21, 2014

S.M.R. JEWELL, Secretary, U.S. Department of Interior, in her of ficial capacity; and UNITED STATES FISH District Of Montana AND WILDLIFE SERVICE, Defendants, MONTANA BOARD OF LAND COMMISSIONERS and MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Intervenor-Defendants.


DONALD W. MOLLDY, District Judge.

Plaintiffs are various environmental organizations who challenge the Secretary of the Interior's issuance of an incidental take permit under the Endangered Species Act ("ESA") and the National Environmental Policy Act ("NEPA") for proposed logging and road building activities to be carried out by the Montana Department of Natural Resources and Conservation (the "Department") on state trust land in western Montana. The Secretary, through the Fish and Wildlife Service ("Service"), issued the permit based on the Department's habitat conservation plan ("the Plan"). Plaintiffs challenge the Plan and the permit principally on the grounds that (1) the required mitigation is not the maximum practicable for either bull trout or grizzly bears, (2) the no-jeopardy determination for bull trout is arbitrary and unlawful, (3) the Service failed to take a "hard look" at environmental impacts, (4) the Service did not consider a reasonable range of alternatives, and (5) the Service did not consider the cumulative impacts of climate change on bull trout. For the reasons discussed below, Plaintiffs' motion is granted as it relates to mitigation measures for grizzly bears and denied in all other respects.


The Department manages trust land throughout the State of Montana. FWS 22850.[1]It is required to manage these lands so that they will generate revenues for Montana schools. HCP 1-4 to 1-6. In April 2003, the Service initiated consideration of an application by the Department for an incidental take permit for proposed logging and related road building activities on approximately 548, 500 acres of state trust land in western Montana. 68 Fed. Reg. 22, 412 (April 28, 2003) (Notice of Intent to prepare EIS); FEIS ES-3 to ES-6; FWS 22850. This area includes two large blocks of land owned by the Department and scattered parcels across western and central Montana. FEIS ES-3. The blocks are the Stillwater Block, which includes the Stillwater and Coal Creek State Forests, and the Swan River State Forest. Id.

These lands provide habitat for a diverse array of aquatic life, with more than 86 fish species known or expected to occur in the project area, including the bull trout. Id. at 4-181. Following the listing of bull trout under the ESA in 1999, 64 Fed. Reg. 58910 (Nov. 1, 1999), critical habitat for the species was designated by the Service in 2005, 70 Fed. Reg. 56212 (Sept. 26, 2005). Under this designation, the Service uses a "core area, " "management unit, " and "interim recovery unit" hierarchy for purposes of consultation and recovery. BiOp IV-2. The core areas are the smallest units, comprising several local populations. Id. at 3. There are 21 bull trout core areas distributed across the Plan project area. Id. The entire Plan project area comprises 2.47 percent of the total habitat acres occupied by bull trout within the bull trout core areas in Montana. Id. at 287. Collectively, the core areas in Montana form regional management units, of which two, the Clark Fork River and the Kootenai River Units, are contained within the Plan project area. Id. at 3. These management units are in turn contained within the Columbia River Interim Recovery Unit. Id. at 287.

The Plan project lands also provide a variety of wildlife habitat for approximately 407 species of wildlife, including grizzly bears. FEIS 4-301. In 1975, the Service determined that grizzly bears in the lower forty-eight states were in need of protection under the ESA as a threatened species. 40 Fed. Reg. 31, 734 (July 28, 1975) (grizzly bear listing notice). Today, known grizzly bear populations persist in the United States in only four areas, including the Northern Continental Divide ecosystem in northwest Montana and the Cabinet-Yaak ecosystem in northwest Montana and northern Idaho. BiOp 11-21. Both of these population areas encompass state lands that are subject to the Plan. Id. at 36.

The Service published a Final Environmental Impact Statement ("EIS") addressing the proposed incidental take permit on September 17, 2010, and completed its Biological Opinion addressing the proposed permit in December 2011; both determined that issuance of the permit would satisfy statutory requirements. 75 Fed. Reg. 57, 059 (Sept. 17, 2010). In December 2011, the Service issued a Record of Decision approving issuance of an incidental take permit to the Department. FWS XXXXX-XXXX.

In analyzing the proposed incidental take permit, the Service relied on the Plan prepared by the Department that covers a set of "forest management activities" including logging and road construction, maintenance, and use. HCP 1-15 to 1-16. To support increased logging activities, the Plan allows for a corresponding increase in road density by 30-40 percent in the Plan project area. See BiOp IV-213, 218, Table IV-13. In addition, the Plan substitutes "a combination of seasonally secure areas and quiet areas" for the former "core areas" set aside for grizzly bear preservation. Id. at 11-87. Plaintiffs' primary concerns under the Plan include the effects on bull trout due to road building, the possibility of delayed improvements to existing roads, and logging within the riparian buffer and the effects on grizzly bears from the Department's abandonment of the "core area" management approach in the Stillwater Block.


A. Summary Judgment

A party is entitled to summary judgment ifit can demonstrate "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). On a motion for summary judgment, this Court must determine whether a fair-minded jury could return a verdict for the non-moving party. Id at 252. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment; factual disputes which are irrelevant or unnecessary to the outcome are not considered. Id at 248.

B. Administrative Procedure Act

Courts review claims regarding NEPA and the ESA under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706 et seq. 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 that is... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). The court's scope of review is narrow, and the court should "not [] substitute its judgment for that of the agency." Motor Vehicle Mfrs. Assn. a/U.S., 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 of fered 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 of Land Mgt., 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 (citation and internal quotation marks omitted). As long as the record supports the agency's decision, that decision should be upheld even if the record could support alternative findings. Ark. v. Okla., 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. Dept. of Agric., 603 F.3d 1073, 1080 (9th Cir. 2010). However, this presumption does not require courts to "rubber stamp" administrative decisions "they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." Bureau of Alcohol, Tobacco & Firearms v. F.L.R.A., 464 U.S. 89, 97 (1983) (internal quotations omitted).


I. ...

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