United States District Court, D. Montana, Missoula Division
NATIVE ECOSYSTEMS COUNCIL, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
LEANNE MARTEN, U.S. Forest Service Region One Forester, UNITED STATES FOREST SERVICE, and UNITED STATES FISH & WILDLIFE SERVICE, Defendants.
L. Christensen, Chief District Judge United States District
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).
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.
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.
National Environmental Policy Act
“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”).
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.
National Forest Management Act
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).
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).
The Administrative Procedure Act
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
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).
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.
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.
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.
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).
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