United States District Court, D. Montana, Missoula Division
NATIVE ECOSYSTEMS COUNCIL and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
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
W. MOLLOY DISTRICT JUDGE.
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 ¶
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.
factual background for this case involves three different
Forest Service decisions, discussed below.
Montana Landscape Designation
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.
Smith Shields Forest Health Project
Project is located in the Crazy Mountains, approximately 16
miles northeast of Wilsall, Montana. 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
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.
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.
Gallatin Forest Plan Clean Up Amendment
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.
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.
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,
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.)
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. 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.
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
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
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).
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.
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).
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)).
"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)).
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). 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).
Motions to Strike and Supplement
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
Motion to Strike
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
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
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.
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 .... ").
"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.
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.
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.
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.
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