Native Ecosystems Council v. Martin

          ORDER

          Jeremiah C. Lynch United States Magistrate Judge

         Before the Court is Defendants' Motion to Strike a document that Plaintiffs filed in support of their summary judgment motion. The document at issue is the revised biological opinion dated March 11, 2016, authored by Jodi L. Bush, Field Supervisor, United States Fish Wildlife Service (“FWS”), regarding an unrelated United States Forest Service (“USFS”) project known as the Lonesome Wood 2 Vegetation Management Project (“Lonesome Wood Biological Opinion”). (Doc. 28-1.) For the reasons discussed, the Court deems it appropriate to grant Defendants' motion and strike the Lonesome Wood Biological Opinion.

         I. Background

         Plaintiffs Native Ecosystems Council and Alliance for the Wild Rockies commenced this action advancing claims under federal environmental laws against Defendants Leanne Marten, the USFS, and the FWS. The claims arise from Defendants' decisions regarding the USFS's proposed Telegraph Vegetation Project (“Telegraph Project”) in the Helena-Lewis and Clark National Forest.

         This action is governed by the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq., and the parties agree Plaintiffs' claims can be resolved on summary judgment motions based upon the Court's review of the administrative record on which the Defendants relied to make their Telegraph Project decisions. (Doc. 4 at 2.) To that end, the Court imposed a deadline of June 16, 2017, by which any party could file a motion to supplement or challenge the administrative record. (Doc. 6 at 1.)

         During the course of Defendants' analysis of the Telegraph Project the USFS engaged the FWS to obtain its biological opinion as to the effects of the Telegraph Project for certain wildlife species. On January 4, 2017, the FWS issued its biological opinion concerning the Telegraph Project (“Telegraph Biological Opinion”) as required by the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. And on January 9, 2017, the USFS issued its Record of Decision authorizing implementation of Alternative 4 identified in the USFS's Final Environmental Impact Statement for the Telegraph Project.

         One of the claims advanced by Plaintiffs under the ESA challenges the sufficiency of the detail with which the FWS discussed “the effects of the action on listed species” in the Telegraph Biological Opinion as required by 50 C.F.R. § 402.14(h)(2). Plaintiffs note the USFS identified five categories of effects the Telegraph Project would have on grizzly bears, and they complain that the FWS did not engage in a detailed discussion of each of the five effects. (Doc. 12 at 18-22 of 38.)

         Plaintiffs further assert that the limited programmatic biological opinions the FWS had previously issued in 2014 and 2016 also failed to address the identified effects on grizzly bears caused by the Telegraph Project. Therefore, Plaintiffs argue the FWS cannot merely rely upon a tiered analysis that is based upon those prior biological opinions.

         Plaintiffs suggest the circumstances of this case and the FWS's alleged failure to analyze all effects of the Telegraph Project are analogous to the circumstances in an unrelated USFS project discussed in Native Ecosystems Council v. Krueger, 63 F.Supp.3d 1246 (D. Mont. 2014). (Doc. 12 at 23-24 of 38.) In Krueger the FWS had relied upon a prior tiered programmatic biological opinion issued relative to a forest travel plan, but the Court found that prior opinion did not address all the effects of the subsequent specific forest project at issue in Krueger. Therefore, the Court remanded the matter to the USFS to obtain a more complete biological opinion that addressed all the effects on grizzly bears caused by the subject forest activity. The USFS was to obtain a sufficiently detailed, site-specific biological opinion from the FWS that analyzed the effects of a specific activity - “all logging associated activities” - because those effects were not addressed in the prior, first-tier biological opinion the FWS issued relative to the forest travel plan. Krueger, 63 F.Supp.3d at 1253. As a result of that remand the FWS prepared the Lonesome Wood Biological Opinion that is the subject of Defendants' motion to strike.

         Based on the record in this case, Plaintiffs contend USFS personnel had identified the Lonesome Wood Biological Opinion as an exemplar of a proper, complete biological opinion that adequately addressed all effects of a proposed action as required by 50 C.F.R. § 402.14(h)(2). After the FWS issued its Telegraph Biological Opinion on January 4, 2017, USFS personnel raised questions about the Telegraph Biological Opinion based on the Lonesome Wood Biological Opinion. On January 5, 2017, USFS General Counsel Alan Campbell wrote an email to USFS Forest Supervisor Jennifer Swiader stating that he found the Lonesome Wood Biological Opinion contained “more detail [...] for grizzly bear” than the Telegraph Biological Opinion, and he called Jodi Bush to discuss the issue. (FWS000330.)

         Swiader forwarded Campbell's email to USFS Forest Supervisor Heather Degeest, and on January 6, 2017, Degeest wrote an email identifying two primary differences between the Telegraph Biological Opinion and the Lonesome Wood Biological Opinion: (1) a difference in the format and structure of, and the headings used in the two opinions; and (2) a difference in the two opinions' discussion of all the effects of each project. (FWS000328.) She noted that the Lonesome Wood Biological Opinion addressed all effects of the forest activity on grizzly bears including the effects of logging and all activities associated with logging. (FWS000328.) But she complained that although the Telegraph Biological Opinion discussed the effects of logging for bull trout, it failed to address the effects of logging for lynx or other wildlife. (FWS000329.) Degeest then suggested the FWS's Telegraph Biological Opinion should contain the same degree of discussion of all effects on all wildlife as the discussion the FWS included in its Lonesome Wood Biological Opinion. She stated “[t]he 2016 Lonesome Wood BO is consistent with what we're asking them to do for Telegraph.” (FWS000329.) Swiader received Degeest's January 6, 2017 email and forwarded it to Jodi Bush - the person who authored the cover letter for the Telegraph Biological Opinion.

         USFS Wildlife Biologist Denise Pengeroth was similarly concerned about the sufficiency of the FWS's discussion of effects in the Telegraph Biological Opinion. On January 5, 2017, she wrote an email in which she expressed her concern about the way in which the Telegraph Biological Opinion separated out the effects of the Telegraph Project, and suggested the FWS should have instead discussed all of the “effects of the project as a whole” and made a determination “for the entire project.” (FWS000356.)

         In response to Pengeroth's concerns, on January 6, 2017, FWS Biologist Tom Olenicki wrote an email in which he explained the FWS's discussion of the effects of the Telegraph Project in the Telegraph Biological Opinion, and confirmed that the FWS's “determination IS for the entire project.” (FWS000337.)

         On January 12, 2017, Pengeroth replied to Olenicki's email acknowledging that in light of Olenicki's explanation she was satisfied with the FWS's discussion of the effects of the Telegraph Project. She stated she found nothing to indicate “that there are additional adverse effects that have not already been addressed[, and] ...