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Native Ecosystems Council v. Marten

United States District Court, D. Montana, Missoula Division

July 31, 2018

NATIVE ECOSYSTEMS COUNCIL, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
v.
LEANNE MARTEN, U.S. Forest Service Region One Forester, UNITED STATES FOREST SERVICE, and UNITED STATES FISH & WILDLIFE SERVICE, Defendants.

          ORDER

          Dana L. Christensen, Chief District Judge United States District Court

         Plaintiffs, Native Ecosystems Council and Alliance for the Wild Rockies (“Council”), challenge the United States Forest Service's (“Forest Service”) decision to approve the Telegraph Vegetation Project (“Telegraph Project”) on the Helena Lewis and Clark National Forest. On March 20, 2018 Magistrate Judge Jeremiah C. Lynch entered his Findings and Recommendation (Doc. 38), recommending that the Forest Service's Motion for Summary Judgment (Doc. 18) be granted, and Council's Motion for Summary Judgment (Doc. 10) be denied. Council timely objects (Doc. 39) and therefore is entitled to de novo review of those findings to which it specifically objects. 28 U.S.C. § 636(b)(1)(C). The Court reviews for clear error those findings and recommendations to which no party objects. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Thomas v. Arn, 474 U.S. 140, 150 (1985). Clear error exists if the Court is left with a “definite and firm conviction that a mistake has been committed.” United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).

         Introduction

         Council has raised the following claims: (1) the Forest Service violated NEPA by failing to address the Telegraph and Tenmile Projects in a single Environmental Impact Statement (“EIS”); (2) the Forest Service violated NEPA by failing to adequately discuss the cumulative impacts of the Telegraph and Tenmile Projects within the Telegraph EIS; (3) the Biological Opinion does not comply with the Endangered Species Act (“ESA”) because it does not contain a “detailed discussion” of the effects of the Telegraph Project on grizzly bears; and (4) the Forest Service violated NFMA because it improperly designated wildland urban interface in violation of the Lynx Amendment to the Forest Plan. After reviewing both parties motions for summary judgment, Judge Lynch recommended that the Court dismiss all of Council's claims upon finding that: (1) the Court lacked jurisdiction over certain claims because Council did not adequately raise these claims during the administrative process; (2) Council waived certain claims by failing to address these claims in its opening brief; and (3) the remaining claims lacked merit. The Court agrees with one exception. Because the Court concludes that Council properly raised its wildland urban interface claim during the administrative process, the Court will address the merits of this claim. Nevertheless, for the reasons explained below, the Court adopts Judge Lynch's recommendation to grant the Forest Service's Motion for Summary Judgment.

         Because the parties are familiar with the factual and procedural background detailed in Judge Lynch's Findings and Recommendation it will only be restated here as necessary to understand the Court's order.

         Legal Standard

         I. National Environmental Policy Act

         NEPA “has twin aims. First, it places upon [a federal] agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1066 (9th Cir. 2002) (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (internal quotations and citations omitted). “NEPA is a procedural statute that does not mandate particular results but simply provides the necessary process to ensure 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 and quotation marks omitted); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989) (stating that NEPA “prohibits uninformed-rather than unwise-agency action”).

         Before undertaking any “major Federal action significantly affecting the quality of the human environment, ” an agency must prepare a detailed 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 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. “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.

         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. Dep't 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. Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003). This deference may be set aside only where an agency takes a position that is “contrary to the clear language” of the Forest Plan. Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 962 (9th Cir. 2005).

         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 law.” 5 U.S.C. § 706(2). As recently articulated by the Ninth Circuit:

Under this standard of review, an agency must examine the relevant data and articulate a satisfactory explanation for its action. An agency's action is arbitrary and capricious if the agency fails to consider an important aspect of a problem, if the agency offers an explanation for the decision that is contrary to the evidence, if the agency's decision is so implausible that it could not be ascribed to a difference in view or be the product of agency expertise, or if the agency's decision is contrary to the governing law.

Organized Village of Kake v. U.S. Dep't of Agriculture, 746 F.3d 970, 974 (9th Cir. 2014) (internal citation and quotation marks omitted).

         Though a review of agency action under APA must be “thorough, probing, [and] in-depth, ” Citizens to Preserve Overton Park, Inc., 401 U.S. at 415, the standard of review is “highly deferential, ” Northwest Ecosystem Alliance v. U.S. Fish and Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007). The court must presume the agency action is valid and affirm it if a reasonable basis exists for the decision. Id.

         IV. Summary Judgment

         Under Rule 56 of the Federal Rules of Civil Procedure, a party is entitled to summary judgment if it “can show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Generally, cases involving review of final agency action under the APA do not involve fact finding but only a review of the administrative record. Northwest Motorcycles Ass'n v. U.S. Dep't of Agriculture, 18 F.3d 1468, 1472 (9th Cir. 1994). Accordingly, summary judgment is the appropriate process to resolve this case.

         Discussion

         I. Administrative Exhaustion

         Judge Lynch found that the Court lacked jurisdiction over Council's NEPA and NFMA claims for failing to exhaust these claims during the administrative process. Council claims that the Forest Service violated NEPA because it failed to analyze the Telegraph and Tenmile Project in a single EIS. Council also claims that the Forest Service violated NFMA because it approved of fuels reduction treatments in the area designated as wildland urban interface in violation of the Lynx Amendment to the Forest Plan.

         Before bringing a claim in federal court, a plaintiff must first exhaust its available administrative remedies. Great Old Broads, 709 F.3d at 846 (citing to 5 U.S.C. § 704). It is “inappropriate” for a federal court to review a claim that was not first presented in the administrative process. 36 C.F.C. § 218.14(b); see also 7 U.S.C. § 69129(e) and 16 U.S.C. § 6515(c). The purpose of this requirement is to allow the “agencies to utilize their expertise, correct any mistakes, and avoid unnecessary judicial intervention[.]” Great Old Broads, 709 F.3d at 846. A plaintiff's failure to exhaust remedies as to a specific claim subjects the claim to dismissal. Oregon Natural Desert Association v. Jewell, 840 F.3d 562, 571-74 (9th Cir. 2016).

         In the context of national forest timber sale litigation, members of the public may “alert[] the decision maker to the problem in general terms, rather than using precise legal formulations.” Idaho Sporting Congress v. Rittenhouse, 305 F.3d 957, 965 (9th Cir. 2002). However, the claims raised during the administrative process must be “so similar to the claims that the district court can ascertain that the agency was on notice of, and had the ...


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