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Native Ecosystems Council v. United States Forest Service

United States District Court, D. Montana, Missoula Division

July 30, 2015

NATIVE ECOSYSTEMS COUNCIL; ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
v.
UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture, FAYE KRUEGER, in her official capacity, Defendants.

ORDER

DANA L. CHRISTENSEN, District Judge.

Before the Court are the parties' cross motions for summary judgment. For the reasons explained, the Court grants Defendants' motion for summary judgment.

Background

Plaintiffs Native Ecosystems Council and Alliance for the Wild Rockies challenge the United States Forest Service's decision to authorize the Environmental Assessment (EA), Decision Notice, and Finding of No Significant Impact (FONSI) for the South Bridger Interface Project (the Project).

The Project involves approximately 250 acres of commercial thinning in insect-infested forest located approximately 15 miles northeast of Bozeman, Montana in the Gallatin National Forest. The Project Area is within and immediately south of Bridger Bowl Ski Area and within the wildland urban interface. Forest vegetation in the area consists of primarily mature and over-mature densely stocked stands of Douglas-fir and lodgepole pine that have recently experienced epidemic levels of mortality due to western spruce bud-worm and mountain pine beetle infestation. Forest Service scientists have concluded that silvicultural treatments that reduce stocking density are "the only long-term solution to budworm management." FS 5513. The purpose of the thinning Project is to reduce tree mortality from ongoing insect infestations and improve forest health, productivity, and resiliency. The Forest Supervisor approved the Project on August 8, 2014, following the issuance of a Final Environmental Assessment and a pre-decisional objection process.

Plaintiffs' claims arise under the National Environmental Policy Act ("NEPA"), the National Forest Management Act ("NFMA"), and the Administrative Procedures Act ("APA"). Plaintiffs assert that Defendants failed to adequately analyze and disclose the cumulative effects associated with the Project, failed to take a hard look at the effects of the Project, and that the Project violates the Gallatin Forest Plan ("Forest Plan").

Legal Standards

I. National Environmental Policy Act

"NEPA is a procedural statute that does not mandate particular results but simply provides the necessary process to insure that federal agencies take a hard look at the environmental consequences of their actions.'" High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 639-40 (9th Cir. 2004) (internal citations omitted.); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989)(NEPA "prohibits uninformed-rather than unwise-agency action.") NEPA requires government agencies to "consider every significant aspect of the environmental impact of a proposed action." Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983). NEPA also requires that relevant information be made available to the public so that they "may also play a role in both the decisionmaking process and the implementation of that decision." Robertson, 490 U.S. at 349.

Before undertaking any "major Federal action significantly affecting the quality of the human environment, " an agency must prepare a detailed environmental impact statement ("EIS"). 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.11. In order to decide whether an EIS is necessary, an agency may prepare an environmental assessment ("EA"). 40 C.F.R. § 1508.9. An EA is a "concise public document" that must "briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement." Id.; see also Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1053 (9th Cir. 2012). "NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail." 40 C.F.R. § 1500.1(b) If the EA concludes that the proposed action will not have a significant effect on the environment, the agency may issue a Finding of No Significant Impact and may then proceed with the action. 40 C.F.R. § 1508.13.

Courts apply a "rule of reason" in reviewing the adequacy of an EA. Klamath-Siskiyou Wildlands Center v. Bureau of Land Management, 387 F.3d 989, 992 (9th Cir. 2004). This requires the court to make a "pragmatic judgment" as to whether an EA adequately discusses the environmental consequences of a project and fosters informed public participation. California v. Block, 690 F.2d 753 (9th Cir. 1982). While courts must "strictly interpret the procedural requirements in NEPA and the CEQ regulations, " Churchill County v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001), courts must "be mindful to defer to agency expertise, particularly with respect to scientific matters within the purview of the agency, " Klamath-Siskiyou Wildlands Center, 387 F.3d at 993 (internal citations omitted.) "[T]he ultimate standard of review is a narrow one, " and a court may not "substitute its judgment for that of the agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

II. National Forest Management Act

NFMA requires forest planning of National Forests at two levels: the forest level and the individual project level. 16 U.S.C. §§ 1600-1687. At the Forest level, NFMA directs the Department of Agriculture to "develop, maintain, and, as appropriate, revise [forest plans] for units of the National Forest System." 16 U.S.C. § 1604(a). A Forest Plan sets broad guidelines for forest management and serves as a programmatic statement of intent to guide future site-specific decisions within a forest unit. Citizens for Better Forestry v. U.S. Dept of Agriculture, 341 F.3d 961, 966 (9th Cir. 2003); Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 729 (1998). Forest Plans must "provide for multiple use and sustained yield of the products and services" derived from the National Forests, including "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1).

At the individual project level, NFMA requires that each individual project be consistent with the governing Forest Plan. Great Old Broads for Wilderness v. Kimbrell, 709 F.3d 836, 851 (9th Cir. 2013).

The Forest Service's interpretation and implementation of its own Forest Plan is entitled to substantial deference. Siskiyou Regional Educ. Project v. USFS, 565 F.3d 545 (9th Cir. 2009); Forest Guardians v. USFS, 329 F.3d 1089, 1099 (9th Cir. 2003).

III. The Administrative Procedure Act

Under the APA, a federal court "shall... 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; [or] without observance of procedures required by ...


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