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Native Ecosystems Council v. Erickson

United States District Court, D. Montana, Missoula Division

August 1, 2018

MARY C. ERICKSON, Custer Gallatin National Forest Supervisor, LEANNE MARTEN, Regional Forester of Region One of the U.S. Forest Service, THOMAS L. TIDWELL, Chief of the U.S. Forest Service, an agency of the Department of Agriculture, and the U.S. FISH & WILDLIFE SERVICE, an agency of the Department of the Interior, Defendants.

          OPINION & ORDER


         Introduction This case concerns three decisions of the United States Forest Service ("Forest Service"): (1) the Forest Service Chiefs designation of approximately five million acres in Montana ("Designation") pursuant to the 2014 Farm Bill Amendment to the Healthy Forests Restoration Act ("HFRA"); (2) approval of the Smith Shields Forest Health Project ("Project") via categorical exclusion; and (3) approval of the "Clean Up Amendment" ("Amendment") to the Gallatin Forest Plan ("Plan"). (Doc. 1 at ¶ 2.)[1] Plaintiffs Native Ecosystems Council and Alliance for the Wild Rockies (collectively "Plaintiffs") claim that the Forest Service and the Fish and Wildlife Service (collectively "Defendants") violated the National Environmental Policy Act ("NEPA"), the Endangered Species Act ("ESA"), the National Forest Management Act ("NFMA"), HFRA, and the Administrative Procedures Act ("APA"). (Id. at ¶ 8.) The parties have filed cross-motions for summary judgment. Plaintiffs also seek to supplement the record, while Defendants filed a motion to strike. For the following reasons, the Defendants' motions are granted and the Plaintiffs' motions are denied.


         The factual background for this case involves three different Forest Service decisions, discussed below.[2]

         I. Montana Landscape Designation

         In 2014, HFRA was amended to provide for the designation of "landscape- scale areas" in the National Forests of any state experiencing insect infestations and/or disease. P.L. 113-79; 16 U.S.C. §§ 6591a, 6591b. The amendment provided a 60-day period within which the Secretary, "if requested by the Governor of the State," was required to "designate as part of an insect and disease treatment program 1 or more landscape-scale areas . . . experiencing an insect or disease epidemic." 16 U.S.C. § 6591a(b)(1). The Secretary delegated this authority to the Forest Service Chief. SmithShields 000001, 7. At the subsequent request of Montana Governor Steve Bullock, Forest Service Chief Thomas Tidwell designated 4, 955, 159 acres as threatened landscapes in Montana. Id. at 000023, 014419. The Project area was part of the Designation. Id. at 014398.

         II. Smith Shields Forest Health Project

         The Project is located in the Crazy Mountains, approximately 16 miles northeast of Wilsall, Montana.[3] Id. The Project area covers 19, 000 acres at the border of Meagher and Park Counties, but the actual treatment and activity area is approximately 1, 660 acres. Id. It is located in the Wildland Urban Interface, as defined by the Meagher and Park County Community Wildfire Protection Plans. Id. In the last fifteen years, the Project area has experienced western spruce budworm outbreaks resulting in defoliation, crown dieback, and small tree mortality. Id. at 014399. The area has also suffered from mountain pine beetle infestation, including at epidemic levels during an outbreak from 2006 to 2010. Id. at 014400. Lodgepole pine dwarf mistletoe has also been found in the Project area. Mat 014402.

         The Project was designated as part of an insect and disease treatment program in accordance with Title VI, Section 602, of HFRA [16 U.S.C. § 6591 et seq.], as amended by Section 8204 of the 2014 Farm Bill. SmithShields 014398. Put simply, the Project was designated under the Farm Bill amendment. The Forest Service approved the Project pursuant to 16 U.S.C. § 6591b(a), which provides that certain projects may be categorically excluded from NEPA's requirement that agencies prepare an Environmental Impact Statement ("EIS") for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The Project was subject to scoping and public notice. SmithShields 014416. Notice was provided to over 150 individuals and organizations, and development included a public meeting and field trip. Id. at 014416-17.

         The Project's purpose is to "reduce vegetative susceptibility to subsequent insect and disease activity to minimize tree mortality that would contribute to surface fuel loadings," and to "maintain fuel loadings at levels that are not conducive to active, crown independent wildland fires during severe weather conditions." Id. at 014403. To that end, the Project includes fuel reduction treatments and vegetation management activities including intermediate and regeneration, or clearcut, harvest. Id. at 014404. Specifically, the Project will result in 351 acres of "regeneration harvest" (including clearcutting, clearcutting with patches, clearcutting whole tree yards, and group selection), and 1, 309 acres of "intermediate harvest" (including sanitation/salvation, salvage/stand improvement, and thinning). Id. at 014405. It will also involve road management activity, including 16.0 miles of maintenance on secondary routes, 1.4 miles of maintenance on alternate routes, 20.3 miles of maintenance on primary routes, and 6.2 miles of temporary road construction. Id.

         III. Gallatin Forest Plan Clean Up Amendment

         On November 2, 2015, the Gallatin Forest Plan was amended to "remove or correct outdated, ineffective, or unnecessary direction from the Gallatin Forest Plan given that full revision of the Plan is not anticipated to be completed until 2019 or later." CleanUp 000739. The Amendment modified or removed 56 goals and standards in the Forest Plan. Id. At issue in this case are Amended Forest- wide Standards 6(a)(5) (big game hiding cover) and 6(c)(2) (old growth). Id. at 000354, 000358-59.

         The Forest Service prepared an Environmental Assessment ("EA") as part of the amendment process. Id. at 000320-498. The EA included an initial public comment period in 2009, and, following slight revision, a second comment period in 2011. Id. at 000774. The Draft EA was made available for public comment in 2014. Id. Following completion of the EA, the Forest Service issued a Finding of No Significant Impact, determining that the changes proposed in the Amendment "will not have significant impacts on the quality of the human environment," and that preparation of an EIS was not necessary. Id. at 000775.

         IV. Procedural History

         Plaintiffs participated in the comment process for both the Project and the Amendment. SmithShields 000527, 000706; CleanUp 001045, 001058, 003218. Plaintiffs also submitted objections regarding both decision. SmithShields 014452; CleanUp 005512, 005515.

         Plaintiffs commenced this suit on April 27, 2017. (Doc. 1.) The Complaint alleges violations of the ESA, NEPA, NFMA, and HFRA. Plaintiffs bring seven claims, alleging: (1) the Forest Service Chiefs designation of approximately five million acres in Montana pursuant to the 2014 Farm Bill Amendment to HFRA violated NFMA, NEPA, and the ESA; (2) the Project threatens Canada lynx in violation of NEPA, NFMA, and the ESA; (3) the Amendment and the Project violate NEPA and NFMA as relates to the big game hiding cover standard (Amended Standard 6(a)(5)); (4) the Amendment and the Project violate NEPA and NFMA as relates to the old growth standard (Amended Standard 6(c)(2)); (5) the Project violates HFRA by failing to consider best available science and maximize old growth retention; (6) the Project violates NEPA and NFMA by relying on a Management Indicator Species (pine marten) that is not present in the Project area; and (7) the Project violates NEPA and NFMA by failing to ensure against irreversible losses in soil productivity. (Doc. 1 at 3CM10.)

         Plaintiffs filed, and subsequently withdrew, a motion for preliminary injunction. Defendants filed their Answer on July 14, 2017. Meagher and Park Counties requested, and were granted, leave to file an amicus brief in support of the Project, as were the State of Montana and the Montana Department of Natural Resources and Conservation.[4] Plaintiffs filed a motion for summary judgment on August 28, 2017, and Defendants filed a cross-motion on September 28, 2017. Defendants filed a motion to strike four declarations attached to the Complaint on September 28, 2017, and Plaintiffs filed a motion to supplement the record with two additional declarations on October 27, 2017. On January 31, 2018, the case was reassigned from Judge Christensen. A hearing on the motions was conducted July 17, 2018.

         Summary Conclusion

         Plaintiffs assert a number of challenges to the Designation, the Project, and the Clean Up Amendment. Plaintiffs' arguments boil down to objections to Forest Service policy and granular attacks on Forest Service science. Defendants rebut that their actions in these three areas were neither arbitrary and capricious nor contrary to law. Defendants prevail.

         Legal Standards

         I. APA

         ESA, NEPA, and NFMA claims are reviewed under the Administrative Procedures Act ("APA"), which states that a court "shall. . . hold unlawful and set aside agency actions, findings, and conclusions found to be .. . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(a); Neighbors of Cuddy Mtn. v. Alexander, 303 F.3d 1059, 1065 (9th Cir. 2002) (NEPA and NFMA); Arizona Cattle Growers' Ass'n, v. U.S. Fish & Wildlife, 273 F.3d 1229, 1235 (9th Cir. 2001) (ESA). Because HFRA includes no private right of action, agency actions under HFRA are also reviewed under the APA. See Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir. 2005) ("Because NFMA and NEPA do not provide a private cause of action to enforce their provisions, agency decisions allegedly violating NFMA and NEPA are reviewed under the [APA]."). An action is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision 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." Motor Vehicle Mfrs. Ass 'n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). "[J]udicial review of an agency's interpretation of its own regulations is limited to ensuring that the agency's interpretation is not plainly erroneous or inconsistent with the regulation." Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097 (9th Cir. 2003).

         II. NEPA

         Regarding the "threshold question of NEPA applicability," "the less deferential standard of 'reasonableness' applies to threshold agency decisions that certain activities are not subject to NEPA's procedures." Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 667 (9th Cir. 1998).

         NEPA requires agencies to take a "hard look" at the potential environmental consequences of contemplated actions before making final decisions to proceed. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350. (1989). "Although these procedures are almost certain to affect the agency's substantive decision . . . NEPA itself does not mandate particular results, but simply prescribes the necessary process." Id. The "hard look" under NEPA may require the preparation of an EIS. 42 U.S.C. § 4332(C); 40 C.F.R. § 1508.11. To determine whether an EIS is necessary, an agency may prepare an EA. 40 C.F.R. §§ 1501.4(b), (c), 1508.9. If preparation of an EA shows the impacts of the contemplated action will not be significant, the agency may issue a Finding of No Significant Impact ("FONSI"). Id. at §§ 1501.4(e), 1508.13.

         An agency may also promulgate categorical exclusions from NEPA review for actions "which do not individually or cumulatively have a significant effect on the human environment." 40 C.F.R. § 1508.4. If a proposed action falls within a categorical exclusion, the agency is not required to prepare an EA or EIS. Id. "An agency satisfies NEPA if it applies its categorical exclusions and determines that neither an EA nor an EIS is required, so long as the application of the exclusions to the facts of the particular action is not arbitrary and capricious." Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1446 n.5 (9th Cir. 1996) (as amended June 17, 1996).

         III. NFMA

         "NFMA creates a two-step process for the management of our national forests." Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1249 (9th Cir. 2005). The Forest Service "must first develop a Land Resource Management Plan ("Forest Plan") for each unit of the National Forest System." Id. (citing 16 U.S.C. § 1604(f)(1)). Next, the Forest Service must ensure that individual projects within a forest unit are "consistent with each forest's overall management plan." Id. (citing 16 U.S.C. § 1604(i)).

         IV. HFRA

         HFRA "directs the Forest Service to take action to 'reduce wildfire risk' and 'enhance efforts to protect watersheds and address threats to forest and rangeland health.'" Wild West Inst. v. Bull, 547 F.3d 1162, 1165 (9th Cir. 2008) (quoting 16 U.S.C. § 6501(1), (3)). "Specifically, the Forest Service is required 'as soon as practicable' to implement an 'authorized hazardous fuel reduction project' on federal land where 'the existence of an epidemic of disease or insects, or the presence of such an epidemic on immediately adjacent land and the imminent risk it will spread, poses a significant threat to an ecosystem component, or forest or rangeland resource.'" Id. (quoting 16 U.S.C. § 6512(a)(4)) (alterations omitted). HFRA requires NEPA compliance. Id. (citing 16 U.S.C. § 6514(a)).

         V. ESA

         Finally, the ESA requires federal agencies to ensure that "any action authorized, funded, or carried out" by the agency "is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of designated critical habitat. 16 U.S.C. § 1536(a)(2). The ESA "imposes on all agencies a duty to consult with either Fish and Wildlife Service or the NOAA Fisheries Service before engaging in any discretionary action that may affect a listed species or critical habitat." Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1020 (9th Cir. 2012).[5] If the agencies determine the proposed action is not likely to adversely affect listed species or critical habitat, the consultation process is terminated and no further action is necessary. 50 C.F.R. §§ 402.13(a), 402.14(b)(1). If it is determined that the action is "likely to adversely affect" listed species or designated critical habitat, however, the agencies must then engage in formal consultation, id. at §§ 402.13(a), 402.14(a)-(b), and the consulting agency must issue a Biological Opinion assessing the likelihood of "jeopardy" to the species and "destruction or adverse modification" of its critical habitat, id. at § 402.14(g), (h).


         I. Motions to Strike and Supplement

         Defendants seek to strike four declarations Plaintiffs filed with the Complaint. In turn, Plaintiffs seek to supplement the record with two additional declarations. Because Plaintiffs base much of their substantive argument on the supplemental declarations, their preliminary consideration is appropriate. The motion to strike is granted, and the motion to supplement is denied.

         A. Motion to Strike

         The motion to strike concerns four declarations attached to the Complaint: three are from Sara Jane Johnson, Ph.D., a wildlife biologist, (Docs. 1-2, 1-3, 1-4), and the fourth is from Jeff Juel, a former school psychologist with an M.S. in School Psychology, (Doc. 1-5). These declarations total approximately 134 pages, and cover the following topics:

First Johnson Declaration (36 pages): elk security calculations in the Project area, and big game hiding cover requirements in the Amended Gallatin Forest Plan.
Second Johnson Declaration (35 pages): the effect of the Project on lynx habitat connectivity.
Third Johnson Declaration (46 pages): snag management analysis in the Project area, the effects on old growth levels of the Clean Up Amendment, and management indicator species in the Project area.
Jeff Juel Declaration (17 pages): the Forest Service's analysis of soil productivity standards in the Project area.

         Defendants argue the declarations attack the Forest Service's scientific methodology, creating an impermissible "battle of the experts." (Doc. 30 at 3.) Plaintiffs insist that the declarations may be considered because they merely "buttress Plaintiffs' claims with detailed background, factual statements, and explanation of scientific principles and studies referenced in their comments to the agencies in the administrative process." (Doc. 33 at 2.) Defendants have the better argument.

         "Generally, judicial review of an agency decision is limited 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). That limitation "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 views more persuasive.'" San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 992 (9th Cir. 2014) (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989)). "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." Native Ecosystems Council v. Weldon, 232 F.Supp.3d 1142, 1148 (D. Mont. 2017) (citing Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980)); see also Mississippi v. EPA, 1AA F.3d 1334, 1348 (D.C. Cir. 2013) ("We repeat: it is not our job to referee battles among experts; ours is only to evaluate the rationality of [the agency's] decision .... ").

         However, "expansion of the administrative record" is allowed where: "(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, 602 F.3d at 1131. The exceptions are "narrowly construed," and it is the proponent's "heavy burden to show that the additional materials sought are necessary to adequately review" the agency decisions at issue here. Id.

         Plaintiffs' general argument is that the declarations (1) show the Forest Service did not consider all relevant factors and (2) explain technical terms and complex subjects. To that end, many of the paragraphs in the declarations include notations indicating which exception to the extra-record evidence bar Plaintiffs believe applies. Despite this coding, review of the declarations show that they attempt to improperly stage a battle of the experts.

         All three of the Johnson declarations go beyond the limitations on extra-record evidence by attacking the science underlying the Forest Service's decisions. In her first declaration, Johnson attacks the methodology by which the Forest Service manages elk security and hiding cover; in her second declaration, she attacks the science underlying the Forest Service's treatment of lynx habitat; and in her third declaration, she attacks the treatment of snag habitat in the Gallatin Forest Plan. While the declarations purport to be limited to extra-record exclusions, in substance they target the Forest Service's science. Their consideration would therefore lead to de novo review of the decisions at issue here by inviting judicial weighing of the science.

         The same applies for JuePs declaration, which targets the Forest Service's soil productivity analysis of the Smith Shields Project. Contrary to Plaintiffs' assertion, the declaration does not simply explain complex terminology or provide relevant background, but assails the methodology itself. Further, even if attacks on the science were within the Court's purview, it is not clear that Juel, a school psychologist by trade and training, possesses scientific expertise about soil productivity standards. In sum, neither the relevant factors exception nor the technical terms/complex subject matter exceptions apply to the Johnson and Juel declarations.

         Plaintiffs also argue the declarations may be considered because, with regard to the Designation, Plaintiffs are attempting to compel agency action-namely, to compel the Forest Service to conduct an EIS considering the impacts of the designation. Section 706(1) of the APA applies where a plaintiff seeks to "compel agency action unlawfully withheld or unreasonably delayed." "In such cases, review is not limited to the record as it existed at any single point in time, because there is no final agency action to demarcate the limits of the record." Friends of the Clearwater v. ...

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