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Swan View Coalition v. Weber

United States District Court, D. Montana, Missoula Division

September 25, 2014

SWAN VIEW COALITION, FRIENDS OF THE WILD SWAN, NATIVE ECOSYSTEMS COUNCIL, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
v.
CHIP WEBER, Flathead National Forest Supervisor, 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 UNITED STATES FISH & WILDLIFE SERVICE, an agency of the U.S. Department of the Interior, Defendants

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For Swan View Coalition, Plaintiff: Rebecca Kay Smith, LEAD ATTORNEY, PUBLIC INTEREST DEFENSE CENTER, Missoula, MT; Timothy M. Bechtold, LEAD ATTORNEY, BECHTOLD LAW FIRM, Missoula, MT.

For Friends of the Wild Swan, Native Ecosystems Council, Alliance for the Wild Rockies, Plaintiffs: Rebecca Kay Smith, LEAD ATTORNEY, PUBLIC INTEREST DEFENSE CENTER, Missoula, MT; Timothy M. Bechtold, LEAD ATTORNEY, BECHTOLD LAW FIRM, Missoula, MT.

For Chip Weber, Flathead National Forest Supervisor, 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, United States Fish & Wildlife Service, an agency of the U.S. Department of the Interior, Defendants: Mark Steger Smith, LEAD ATTORNEY, OFFICE OF THE U.S. ATTORNEY, Billings, MT; Ethan Eddy, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Washington, DC.

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ORDER

Donald W. Molloy, United States District Judge.

Introduction

This is an action for declaratory and injunctive relief pursuant to the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4331 et seq., the National Forest Management Act (" NFMA" ), 16 U.S.C. § § 1600 et seq., and the Endangered Species Act (" ESA" ), 16 U.S.C. § § 1531 et seq. Plaintiffs are various environmental organizations tat challenge the United States Forest Service's (" Forest Service" ) and the United States Fish and Wildlife Service's (" Fish and Wildlife Service" ): (1) authorization of the Glacier Loon Fuels Reduction and Forest Health Project (" the Project" ) on the Flathead National Forest and (2) failure to conduct environmental analysis for decisions regarding the " Legacy Lands" acquisition, operating procedures, and subsequent logging projects in the grizzly bear and lynx analysis areas for the Project. The parties' respective motions for summary judgment, (Docs. 20 and 28), are granted in part and denied in part. Plaintiffs' motion to supplement, (Doc. 14), is denied.

Background

I. Legacy Lands Acquisition

In 2009, the Forest Service acquired title to approximately 111,740 acres of private land previously owned by The Nature Conservancy, known as " Legacy Lands." X21:59449-60058.[1] The lands were previously held by private parties and are intermingled with Forest Service lands. X21:59557. The Nature Conservancy received a $250 million tax refund for the acquired lands, and the Forest Service paid $1.00 in consideration. X21:059559-60. The Nature Conservancy vested all trees of merchantable timber value as reserved logging rights pursuant to 36 C.F.R. § 251.14. X21:59450-51. The Nature Conservancy's deed to the Forest Service was also made subject to the " USFS-TNC Agreed Operating Procedures Regarding Reserved Timber Harvest Rights" (" Agreed Operating Procedures" ). X21:59451. The Agreed Operating Procedures " set[] forth the terms and conditions under which [The Nature Conservancy] exercise[s] its Timber Rights Reservation and manage[s] incidental and related matters" on the donated lands in question. X21:59526.

II. The Project

The Project includes 37,320 acres and extends south and west of Condon, Montana on the west side of Montana Highway 83 to the south end of Lindbergh Lake. V2:44344. It includes 29,364 acres of public

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(i.e., National Forest system) lands and 7,956 acres of private lands. V2:44468. It implements a variety of national, regional, and local management directives to reduce the risk of high severity wildfire in areas of the Flathead National Forest. V3:44912. The Project is also being undertaken to improve and maintain healthy forest stands, to prevent insect and disease infestations, and to provide timber for commercial use. V2:44913. The Project undertakes these objectives through ten different types of silvicultural treatments on roughly 1,400 acres. V3:44969. It provides access to treated units through an estimated 5.9 miles of temporary road construction and provides for the closure and decommissioning of an estimated 8.4 miles of National Forest System road. V3:44911.

In August 2012, the Forest Service published the Environmental Assessment (" EA" ) for the Project. V2:44338. Several species listed under the ESA are present in, or have designated critical habitat in, the Project area. The Project is located in the Northern Continental Divide Grizzly Bear Ecosystem, within the designated " grizzly recovery zone." V2:44635. The grizzly recovery zone is divided into Bear Management Units and further divided into bear management subunits. V2:44633. The Project is located primarily within the boundaries of the Glacier Loon subunit, and a small portion falls within the Buck Holland subunit. V2:44344. The Project area also lies within six different Lynx Analysis Units. V2:44658-59.

The Forest Service analyzed each of the protected species in a Biological Assessment and concluded the Project would have no effect on bull trout, bull trout critical habitat, and water howellia.[2] J1:16393, N2:26711. The Forest Service determined the Project would not result in jeopardy to the wolverine population. H17:2946-51, H160:11901-903. The Forest Service also concluded the Project is not likely to adversely affect the grizzly bear, H16:2856, will not have significant large-scale negative cumulative effects on Canada lynx, X20:59423, and is not likely to adversely modify or destroy lynx critical habitat, X47:60948.

On February 13, 2013, the Forest Service signed the Decision Notice/Finding of No Significant Impact authorizing the Project. V3:44908. Plaintiffs filed a timely administrative appeal, W2:45338-596, which the Forest Service denied, W19:45828; W21:45845; W23:45863; W25:45876. The Project was expected to commence as early as July 14 or 15, 2014, (Garrity Dec., Doc. 37-1 at ¶ 9; Clay Dec. 38-1 at ¶ 4), and to be fully completed by 2019, V3:44927. On July 1, 2014, Plaintiffs moved for a preliminary injunction to prevent the Project from moving forward. (Doc. 36.) On July 14, 2014, this Court denied that injunction, (Docs. 40 and 41), and on July 15, Plaintiffs appealed that decision to the Ninth Circuit, (Doc. 42). The appeal of this Court's ruling on the preliminary injunction remains pending. Because an appeal under 28 U.S.C. § 1292(a)(1) from an interlocutory order involving a preliminary injunction does not divest the district court with jurisdiction to proceed with a decision on the merits, absent a stay order issued by the Court of Appeals, this Court may proceed on the merits of the parties' motions for summary judgment. See Ex parte Natl. Enameling & Stamping Co., 201 U.S. 156, 162, 26 S.Ct. 404, 50 L.Ed. 707, 1906 Dec. Comm'r Pat. 759 (1906) (" The case, except for the hearing on the appeal from

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the interlocutory order, is to proceed in the lower court as though no such appeal had been taken, unless otherwise specifically ordered." ); Plotkin v. Pac. Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982).

Plaintiffs raise a number of concerns regarding the Project, including: (1) whether the Forest Service's " no effect" determination for water howellia and bull trout is arbitrary and capricious; (2) whether the procedural requirements of the ESA were met in regards to the wolverine; (3) whether the Project violates NFMA; (4) whether the agencies' analysis regarding grizzly bears, lynx, and lynx critical habitat is sufficient; and (5) whether the Forest Service's decision not to prepare an environmental impact statement (" EIS" ) is arbitrary and capricious.

Summary Conclusion

Although Plaintiffs raise numerous challenges to the Glacier Loon Project and the Legacy Lands acquisition and logging projects, very few of Plaintiffs' claims have merit. In all respects, except the following, the Forest Service has complied with both the ESA and NEPA. Plaintiffs correctly contend that the agency was required to engage in ESA and NEPA analysis in the creation of the Agreed Operating Procedures and for site-specific logging projects in the Project area. Regarding the analysis of the Project, the Forest Service's " no effect" determination for water howellia and bull trout is arbitrary and capricious, and the Forest Service failed to follow the necessary procedures under the ESA after reaching a " may affect" conclusion for the wolverine. Further, the Forest Service applied the incorrect standard under Amendment 19, requiring it to reconsider its Section 7 analysis of grizzly bear under the numerical access objectives in the Forest Plan.

Legal Standards

I. Summary Judgment

A party is entitled to summary judgment if it 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only disputes over facts that might affect the outcome of the lawsuit will preclude entry of summary judgment; factual disputes that are irrelevant or unnecessary to the outcome are not considered. Id. at 248.

II. Administrative Procedure Act

Courts review claims regarding the ESA, NEPA, and NFMA under the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701 et seq. See Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir. 2002) (ESA and NEPA); Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th Cir. 2011) (NEPA and NFMA). Under the APA, a " reviewing court shall hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 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. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (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

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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. U.S. 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. (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, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). Review of the agency's action is " highly deferential, presuming the agency action to be valid." Buckingham v. Secy. of U.S. 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, 104 S.Ct. 439, 78 L.Ed.2d 195 (1983) (internal quotation marks omitted).

Analysis

I. The Legacy Lands Acquisition

A federal agency is only required to perform analysis under the ESA and NEPA if the conduct in question amounts to " agency action" under the ESA or " major federal action" under NEPA. There is no ESA or NEPA analysis for the Legacy Lands acquisition or the reserved logging rights on those lands. X15:59357-59. Plaintiffs contend the acquisition of the Legacy Lands, the operating procedures for the reserved logging rights, and the site-specific logging projects all qualify as " agency action" and " major federal action" and the Forest Service is therefore required to perform analysis under the ESA and NEPA with regard to those actions. Considering the Agreed Operating Procedures and site-specific logging projects, Plaintiffs are correct.

A. Agency Action

Section 7 of the ESA defines agency action as " any action authorized, funded or carried out by [a federal] agency." 16 U.S.C. § 1536(a)(2). The ESA implementing regulations provide:

Action means all activities or programs of any kind authorized, funded or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to: (a) actions intended to conserve listed species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air.

50 C.F.R. § 402.02. The term " agency action" is interpreted broadly. Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1020 (9th Cir. 2012) [hereinafter Karuk Tribe ]. " Under [] established case law, there is 'agency action' sufficient to trigger the ESA consultation duty whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed." Id. at 1027. The " agency action" inquiry is two fold. First, has a federal agency affirmatively authorized, funded, or carried out the underlying activity? Second, does the agency have some discretion to influence or change the activity for the benefit of a protected species? Id. at 1021. The complicating question here is to what extent Section 7 of the ESA applies where a private entity has vested logging rights

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on land donated to the Forest Service and the impact of the Forest Service's continued ability to influence private conduct when its authority is limited by the terms outlined in the Agreed Operating Procedures.

1. Legacy Lands Acquisition

Plaintiffs first argue the acquisition of the Legacy Lands qualifies as " agency action" requiring consultation under the ESA. The land in question was " donated to the United States . . . for the Forest Service . . . at no cost to the United States." X21:59525; 7 U.S.C. § 2269 (governing gifts of property to the United States Department of Agriculture). Pursuant to Title 7 of the United States Code, the Secretary is " authorized to accept, receive, hold, utilize, and administer" gifts of land. 7 U.S.C. § 2269. Defendants argue, however, that the Secretary had no choice but to accept the donation pursuant to the statute governing conservation bonds. Pursuant to 26 U.S.C. § 54B(e)(2), under " qualified forestry conservation bonds," " [a]t least half the land acquired [by a State or non-profit organization] must be transferred to the United States Forest Service at no net cost to the United States." This provision gives no discretion to the Forest Service to decide whether or not to accept the donation. This means the requirements of Karuk Tribe have not been met and the acquisition of the land is not " agency action" under the ESA.

2. Agreed Operating Procedures

On March 9, 2010, The Nature Conservancy and the Forest Service entered into the Agreed Operating Procedures to manage The Nature Conservancy's commercial logging projects on the Legacy Lands. X21:59541. " Negotiating and executing contracts constitute agency action under the ESA." Tinoqui-Chalola Council of Kitanemuk & Yowlumne Tejon Indians v. U.S. Dept. of Energy, 232 F.3d 1300, 1306 (9th Cir. 2000); Nat. Resources Defense Council v. Houston, 146 F.3d 1118, 1125 (9th Cir. 1998). The joint promulgation of the Agreed Operating Procedures here shows affirmative authorization by the Forest sufficient to fall within the broad definition of " agency action" under Section 7 of the ESA. See Sierra Club v. Babbitt, 65 F.3d 1502, 1508 (9th Cir. 1995) (noting that " after enactment of the ESA the execution of a reciprocal right-of-way agreement clearly would implicate section 7(a)(2)" ); Conner v. Burford, 848 F.2d 1441, 1454-58 (9th Cir. 1988) (holding the Bureau of Land Management must comply with Section 7 by identifying all potential impacts on a protected species of all post-leasing activities before entering into lease agreement). In authorizing the Agreed Operating Procedures, the Forest Service also had the discretion to implement more protective measures for protected species. See Nat. Resources Defense Council v. Jewell, 749 F.3d 776, 784-85 (9th Cir. 2014) (en banc) (finding agency action where agency had ability to renegotiate different contract terms for the benefit of protected species). The promulgation of the Agreed Operating Procedures is " agency action" requiring analysis under the ESA. The Forest Service is enjoined from proceeding under the terms of the Agreed Operating Procedures until the necessary analysis is performed.

3. Site-Specific Logging Projects

As a preliminary matter, there may be an issue as to whether or not this issue is moot as Defendants have indicated all logging projects by The Nature Conservancy in the Glacier Loon analysis area have been completed. (Doc. 35 at 7); X20:59407 (" Harvest plans for . . . projects in the ...


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