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Native Ecosystem Council v. Weldon

United States District Court, D. Montana, Missoula Division

February 6, 2017

LESLIE WELDON, in her official capacity as Regional Forester of Region One U.S. Forest Service; UNITED STATES FOREST SERVICE, an agency of the United States; and MARY ERICKSON, in her official capacity as Supervisor of the Custer National Forest, Defendants.


          Donald W. Molloy, Judge

         Plaintiff Native Ecosystems Council ("Native Ecosystems") seeks injunctive and declaratory relief against Defendants LeAnne Martin, Regional Forester of Region One of the United States Forest Service, Mary Erickson, Supervisor of the Custer National Forest, and the United States Forest Service (collectively "the Forest Service") on the grounds the Forest Service failed to comply with the National Environmental Policy Act ("NEPA") and the National Forest Management Act ("NFMA") when it approved the North Whitetail Post Fire Project Salvage Sale ("Whitetail Project") in the Custer National Forest. Contrary to Native Ecosystems' assertions, the Forest Service met its statutory obligations.


         During the 2012 fire season, lightning ignited multiple wildfires that burned 312, 418 acres around Ashland in southeastern Montana, including 143, 200 on the Ashland Ranger District.[1] AR8855. The largest fire was the Ash Creek Fire, which burned 249, 562 acres, 88, 465 acres in the Ashland Ranger District. Id. The Ash Creek Fire burned across the Whitetail Project area as a mixed severity fire. Id. Areas that burned at moderate to high intensity resulted in extensive mortality of ponderosa pine, and the ponderosa pine in the northern and southern portions of the Project area is predominantly dead. Id. In contrast, the middle Project area burned at a "low to moderate intensity." AR8856. In 2014, the Forest Service completed the Ashland Post Fire Landscape Assessment to assess current conditions, trends, and management practices on the post-fire landscape. AR8855. The Assessment identified future management opportunities to aid in ecosystem restoration and to improve or maintain ecosystem resilience. AR8858. It did not discuss the Whitetail Project. See AR7549-7692.

         Following the 2012 fire, the Forest Service implemented three salvage sales in the vicinity: (1) in 2013, the Ashland Roadside Hazard Tree Abatement & Removal Projects, which cumulatively removed fire-damaged trees from 270 acres, AR12057-58, 12080-81; (2) in 2015, the Phoenix Salvage Sale, which permitted the harvest of up to 250 acres, AR12101-118; and (3) in 2016, the Whitetail Project, which permitted the harvest of up to 250 acres, AR8855-98. These sales were, at least in part, categorically excluded from NEPA review pursuant to 36 C.F.R. § 220.6(e)(13) ("Category 13"), which provides an exclusion for the "salvage of dead and/or dying trees not to exceed 250 acres [and] requiring no more than XA mile of temporary road construction."

         On April 29, 2016, a Scoping Notice was issued for the Whitetail Project.[2]See AR0011-0017; see also AR0001-04. And, on July 8, 2016, the Forest Service issued a Decision Memo authorizing the Project. AR8860, 8898. The Project proposes the cutting of 250 acres spread across a 5, 288-acre area in the northern portion of the Ashland Ranger District. AR8859; see also AR8897-98 (mapping individual salvage harvest units). The Project is expected to last no more than two consecutive years, AR8874, and is purported to "[r]estore moderately to severely burned areas to reduce long term downed fuel accumulations and re-establish forest cover, " and allow "[s]alvage up to 250 acres of ponderosa pine that were killed by the Ash Creek Fire to reduce downed fuel accumulations and provide timber projects to help support local communities, " AR8859-60.


         Summary judgment is appropriate if "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Judicial review of agency actions under NEPA and NFMA is governed by the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 706 et seq. See Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th Cir. 2011). Under the APA, a "reviewing 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 the law." 5 U.S.C. § 706(2)(A). The scope of review is narrow, and a court should "not [] substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass 'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A decision is arbitrary or 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.

Gardner v. U.S. Bureau of LandMgmt, 638 F.3d 1217, 1224 (9th Cir. 2011) (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc)). 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).

         Analysis According to Native Ecosystems, the Forest Service's approval of the Whitetail Project represents "death-by-a-thousand categorically excluded salvage sales." (Doc. 34 at 6.) Native Ecosystems insists that the Forest Service has violated its statutory mandate by improperly segmenting salvage sales and has been living the "big lie" of grossly exaggerating the abundance of suitable habitat for the black-backed woodpecker and minimizing the impact of those salvage sales. (Id. at 16-17.) While raising important questions about the application of categorical exclusions to temporally and geographically similar projects, Native Ecosystems' concerns are not borne out by the facts here. The Forest Service's decision to proceed under Category 13 was neither arbitrary nor capricious.

         I. Extra-Record Materials

         Due to Native Ecosystems' ubiquitous reliance on information presented in extra-record materials, that issue is addressed first.

         Courts reviewing agency action under the APA must generally limit their review to the administrative record on which the agency based the challenged decision. Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010). Limiting a court's review to the administrative record "ensures that the reviewing court affords sufficient deference to the agency's action. The APA gives an agency substantial discretion 'to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary view more persuasive.'" San Luis & Delta-Mendota Water Auth. v. Locke, 116 F.3d 971, 992 (9th Cir. 2014) (quoting Marsh v. Or. Natural Resource Council, 490 U.S. 360, 378 (1989)). Here, Native Ecosystems submitted two extra-record expert declarations by Chad Hanson regarding the black-backed woodpecker. (Docs. 28, 35.) Extra-record declarations by scientists are of heightened concern as they implicate the deference due the agency and essentially lead to de novo review of the agency's action rather than the more deferential review required by the APA. Asarco, Inc. v. E.P.A., 616 F.2d 1153, 1160 (9th Cir. 1980).

         Nevertheless, courts can consider extra-record evidence in four narrowly construed circumstances: if "(1) supplementation is necessary to determine if the agency has considered all factors and explained its decision; (2) the agency relied on documents not in the record; (3) supplementation is needed to explain technical terms or complex subjects; or (4) plaintiffs have shown bad faith on the part of the agency." Fence Creek Cattle Co., 602 F.3d at 1131. While the first and third exceptions are implicated here, Hanson's declarations fail to meet the exception requirements.[3]

         Invoking the third exception, Native Ecosystems explains that parties are permitted to submit expert opinions for the purpose of explaining technical terms or complex subject matter presented in the scientific documents of the administrative record. (Doc. 34 at 14 (citing Inland Empire Public Lands Council v. Glickman, 88 F.3d 697, 703-04 (9th Cir. 1996)). Native Ecosystems does not, however, explain how Hanson's declarations perform that limited function. Rather, the declarations go beyond mere explanation and instead challenge the underlying science and data used by the agency. They may not be considered pursuant to this exception. See Asarco, 616 F.2d at 1159 (allowing explanation so long as it contains "no new rationalizations").

         Alternatively, Native Ecosystems argues that the declarations are necessary to determine whether the agency considered all relevant factors or failed to consider an important aspect of the problem, insisting "it is not possible to demonstrate what an agency failed to consider by being tethered to what they did consider." (Doc. 34 at 12.) However, instead of merely asking the Court to review the declarations to show that the agency failed to consider a relevant factor, Native Ecosystems asks the Court to use the declarations as a basis for challenging the wisdom and/or correctness of the Forest Service's scientific analysis. To do so would be improper:

Although the relevant factors exception permits a district court to consider extra-record evidence to develop a background against which it can evaluate the integrity of the agency's analysis, the exception does not permit district courts to use extra-record evidence to judge the wisdom of the agency's action. This distinction is a fine, but important, one. Reviewing courts may admit evidence under this exception only to help the court understand whether the agency complied with the APA's requirement that the agency's decision be neither arbitrary nor capricious. But reviewing courts may not look to this evidence as a basis for questioning the agency's scientific analyses or conclusions.

San Luis, 116 F.3d at 993 (internal citations omitted) (emphasis added). Hanson's declarations criticize the science underlying the Forest Service's cumulative effects analysis. They do not support the proposition that the agency failed to consider relevant factors, but rather that its consideration of those factors was scientifically unsound. That is exactly the type of ...

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