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Alliance For the Wild Rockies v. Austin

United States District Court, D. Montana, Missoula Division

October 28, 2014

ALLIANCE FOR THE WILD ROCKIES, Plaintiff,
v.
DEBORAH AUSTIN, FAYE KRUEGER, UNITED STATES FOREST SERVICE, and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants

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For Alliance for the Wild Rockies, a non-profit organization, Plaintiff: Guy R. Knudsen, LEAD ATTORNEY, PRO HAC VICE, NORTHWEST NATURAL RESOURCE ADVOCATES, Pullman, WA; Robert M. Gentry, ROBERT GENTRY LAW, Missoula, MT.

For Deborah Austin, in her official capacity as Forest Supervisor for the Lolo 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 United States Department of Agriculture, United States Fish and Wildlife Service, an Agency of the U.S. Department of Interior, Defendants: Mark Steger Smith, LEAD ATTORNEY, OFFICE OF THE U.S. ATTORNEY, Billings, MT; Rickey Doyle Turner, Jr., U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Wildlife & Marine Resources Section, Denver, CO.

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ORDER

Dana L. Christensen, Chief United States District Judge.

Before the Court are the parties cross-motions for summary judgment. For the reasons explained below, the Court grants Defendants' motion and denies Plaintiff's motion.

Background

Plaintiff challenges Defendants' approval of the Rennic Stark Project (" the Project" ) under the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § 4331, et seq., the National Forest Management Act (" NFMA" ), 16 U.S.C. § 1604, et seq., the Endangered Species Act (" ESA" ), 16 U.S.C. § 1531, et seq., and the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701, et seq. Plaintiff seeks declaratory and injunctive relief.

The Project is located on the Ninemile Ranger District of the Lolo National Forest, approximately thirty miles west of Missoula, Montana. The approximately 36,000-acre Project area straddles a divide between the Ninemile Creek and Clark Fork River valleys, and ranges in elevation from approximately 3,200 feet near the Clark Fork River to over 7,000 feet atop Stark Mountain. Much of the forested vegetation within the Project area displays a uniformity consistent with post-large-scale, stand-replacing fire conditions; indeed, much of the Project area burned in the early 1900's. FS 000009.[1] The southern end of the Project area borders Interstate 90.

The Project area contains a number of power and communication infrastructure components, including the Bonneville Power Administration Garrison-Taft 500-KV transmission line, Missoula County's Alberton Beacon communication site southwest of Ellis Mountain, and the Forest Service's communication site northwest of Ellis Mountain. FS 000009. Nearly 20,000 acres within the Project area are considered wildland-urban interface, and both the Missoula and Mineral County Community Wildland Fire Protection Plans identify the Project area as susceptible to wildfire and in need of hazardous fuels reduction activities. FS 000010.

The Project proposes a host of management measures in part designed to address these conditions, including: commercial harvesting on 1,976 acres; non-commercial young-stand thinning followed by burning on 1,975 acres; ecosystem maintenance burning on 5,250 acres; decommissioning 28.6 miles of road and storing another 22.4 miles; building approximately one mile of temporary road; performing maintenance and reconstruction activities on 34.5 miles of road; replacing three dysfunctional road culverts; completing one stream channel

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restoration project; and, reconstructing a public access trailhead. FS 000017. The United States Forest Service's (" Forest Service" ) intention with the Project is to " restore functioning ecosystems by enhancing natural ecological processes, re-establish fire as a natural process on the landscape, improve terrestrial habitat and connectivity, improve aquatic habitat and connectivity, [and] integrate restoration with socio-economic well-being." FS 000013. Defendants cite the need to manage Project area conditions which " predispose [forest] stands to stand-replacing fire events and insect and disease epidemics" as further justification for the Project. (Doc. 32 at 5.)

The Forest Service published the Environmental Assessment (" EA" ) for the Project in November 2012. FS 000001. The EA discussed the likely effects of the Project on a number of wildlife species, including the ESA-listed threatened Canada lynx, the Forest Service-sensitive fisher, the Forest Service-sensitive North American wolverine,[2] goshawk, and westslope cutthroat trout. FS 000084-000095, 000099-000106, 000120-000124, 000131-000140. The analysis area is not located in designated critical lynx habitat, though the Project area in part consists of occupied habitat and contains a portion of the Divide Lynx Analysis Unit (" Divide LAU" ). Official records of Canada lynx occurrences have not been reported in the analysis area in over a decade. FS 040464, 000084. Prior to issuing the EA, the Forest Service determined that the Project " may affect, but is not likely to adversely affect" the Canada lynx or any lynx habitat in an Amended Biological Assessment dated October 1, 2012. FS 003782, 003807.

On March 22, 2013, the Forest Service signed and issued the Decision Notice adopting Alternative 2 from the EA, as well as a Finding of No Significant Impact pursuant to 40 C.F.R. § 1508.13. FS 000251, 000330. Plaintiff timely appealed the Forest Service's decision on May 9, 2013. FS 044970. The Forest Service subsequently denied Plaintiff's appeal on June 24, 2013. FS 049907-049908. Plaintiff filed its complaint in this case on August 13, 2013, and moved for summary judgment on February 14, 2014. Defendants filed their cross-motion for summary judgment on March 14, 2014. The cross-motions were fully briefed as of May 1, 2014.

Summary Judgment Standard

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.

Standards of Review

I. Judicial Review Under the APA.

Neither the ESA, NEPA, nor the NFMA contain independent provisions governing judicial review of agency action; the Court's review in this case therefore proceeds via the APA. City of Sausalito v. O'Neill, 386 F.3d 1186, 1205-1206 (9th Cir.

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2004) (citations omitted) (as to ESA and NEPA); Neighbors of Cuddy Mt. v. Alexander, 303 F.3d 1059, 1065 (9th Cir. 2002) (as to NFMA). Pursuant to the APA, the Court may " hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

" Review under the arbitrary and capricious standard is narrow, and [the Court should] not substitute [its] judgment for that of the agency" whose decision is under review. Earth Is. Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1013 (9th Cir. 2012) (citations and internal quotation marks omitted). " An agency's decision can be set aside 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. (citations and internal quotation marks omitted).

II. Statutory Requirements Under NEPA, NFMA, and ESA.

A. NEPA.

NEPA requires federal agencies to prepare detailed environmental impact statements for actions that may significantly affect the environment. 42 U.S.C. § 4332(2)(C). NEPA does not, however, " mandat[e] that agencies achieve particular substantive environmental results." Marsh v. Or. Nat. Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Instead, NEPA simply " ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Notably, " if the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs." Id. at 350-351 (" NEPA merely prohibits uninformed - rather than unwise - agency action" ).

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), overruled in part on other grounds by Winter v. Natural Resource Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

An EA generally precedes an EIS. An EA is a " concise public document . . . that serves to: (1) [b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact; (2) [a]id an agency's compliance with the Act when no environmental impact statement is necessary, and (3) [f]acilitate preparation of a statement when one is necessary." 40 C.F.R. § 1508.9(a). An EA " [s]hall include brief discussions of the need for the proposal, of [project] alternatives . .., of the environmental impacts of

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the proposed action and alternatives, and a listing of agencies and persons consulted. Id § 1508.9(b).

2. NFMA.

The NFMA mandates that the Forest Service " develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System, coordinated with the land and resource management planning processes of State and local governments and other Federal agencies." 16 U.S.C. § 1604(a). Land and resource management plans, commonly referred to as forest plans, must " provide for multiple use and sustained yield of the products and services obtained" from individual forest units, and must " include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." Id. at § 1604(e)(1). Forest plans must also " provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives." Id. at § 1604(g)(3)(B). All projects planned within a forest unit must be consistent with the forest plan as well as any regulations in effect at the time of the decision. Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1249 (9th Cir. 2005) (citing 16 U.S.C. 1604(i)).

3. ESA.

Finally, Section 7 of the ESA 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). In evaluating compliance with the no-jeopardy requirement, an " agency shall use the best scientific and commercial data available." 16 U.S.C. § 1536(a)(2). " Only after the [agency] complies with § 7(a)(2) can any activity that may affect the protected [species] go forward." Pac. 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 Fish & 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 Fish & 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 Fish & Wildlife Service. 50 C.F.R. § 402.12(j). " If [the Fish & 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). Generally, " the minimum threshold for an agency action to trigger consultation with the Wildlife Service is low." W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 496 (9th Cir. 2011). " [A]ny possible effect, whether beneficial, benign, adverse, or of an undetermined character, triggers the formal consultation requirement." Id. (citing

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51 Fed. Reg. 19926, 19949 (June 3, 1986); Cal. ex rel. Lockyer v. U.S. 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 necessary when the Forest Service has determined that an action is " likely to adversely affect" a listed species. Id. However, formal consultation 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).

Section 9 of the ESA prohibits " take" of any listed species. 16 U.S.C. § 1538(a)(1)(B). " Take" includes " harassment" of a listed species by means of " an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns." 16 U.S.C. § 1532(19); 50 C.F.R. § 17.3. If an agency action is likely to cause take but not jeopardize the species, the Fish & Wildlife Service may issue an incidental take statement, which establishes the expected impact to the species, reasonable and prudent measures necessary to minimize take, and terms and conditions for implementing those measures. 16 U.S.C. § 1536(b)(4); 50 C.F.R. 402.12(i). If an agency complies with the terms and conditions of an incidental take statement, it is exempt from ESA section 9 liability. 50 C.F.R. 402.14(i)(5).

Discussion

The parties frame their dispute in terms of the Project's effects, or lack thereof, on the Canada lynx, the North American wolverine, sensitive and old-growth-dependent species (fisher and goshawk), and westslope cutthroat trout. The Court will address the ...


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