United States District Court, D. Montana, Missoula Division
NATIVE ECOSYSTEMS COUNCIL, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
v.
LEANNE MARTEN, Regional Forester of Region One of the U.S. Forest Service, UNITED STATES FOREST SERVICE, and UNITED STATES FISH & WILDLIFE SERVICE, Defendant.
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] ...