Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Native Ecosystems Council v. Marten

United States District Court, D. Montana, Missoula Division

August 13, 2018

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

          ORDER

          DANA L. CHRISTENSEN, CHIEF JUDGE

         On June 15, 2018, Plaintiffs filed a Motion for Preliminary Injunction/Temporary Restraining Order (Doc. 6) supported by the declaration of Michael Garrity, the Executive Director of Plaintiff Alliance for the Wild Rockies ("AWR"), and an excerpt of the Flathead National Forest Plan Amendment 21 Final Environmental Impact Statement ("Amendment 21"). (Docs. 6-1; 6-2.) On June 27, 2018, this Court granted Plaintiffs' request for a temporary restraining order. (Doc. 8 at 5.) On June 29, 2018, Defendants filed both a Motion to Dissolve Temporary Restraining Order (Doc. 10) and a Motion to Strike Plaintiffs' Exhibit 1 (Doc. 12), which is Amendment 21. Per the Court's Order, the temporary restraining order automatically expired on July 20, 2018, the day a hearing on Plaintiffs' Motion for a Preliminary Injunction was held. (Doc. 8 at 5.) Consequently, Defendants' Motion to Dissolve the Temporary Restraining Order will be denied as moot. For the following reasons, Plaintiffs Motion for Preliminary Injunction will be granted and Defendants Motion to Strike will be denied.

         DISCUSSION

         At issue is the United States Forest Service's ("USFS") North Hebgen Project in the Custer-Gallatin National Forest. Plaintiffs assert that Defendants failed to conduct Endangered Species Act ("ESA") consultation on Gallatin Forest Plan Amendment 51 ("Amendment 51"), the Forest Plan controlling the North Hebgen Project, despite the fact that the changes included in Amendment 51 may have an effect on lynx, a species listed as threatened under the ESA (Id. at 26 (citing A-5:NH000224).)

         Plaintiffs allege that Amendment 51 replaced the existing standard requiring the retention of 30% of "old growth" forest with a less-stringent standard pertaining to "over-mature" forest, which would allow the initially non-compliant North Hebgen Project to comply with the forest plan. (Doc. 6 at 24-25 (citing D-7:NH002605- 06).) Plaintiffs argue that this change, compounded with numerous other changes, [1]"collectively reduce the quality and amount of 'old growth' and mature forest protection on the Gallatin National Forest." (Id. at 25-26.) Moreover, Plaintiffs point out that USFS noted that the replacement of the "old growth" standard with the "over-mature" standard has '"a potential effect on wildlife associated with old growth.'" (Id. at 26 (quoting D-10: NH003238).) After pointing to the alleged concession on the part of USFS, Plaintiffs cite to Amendment 21 as proof that USFS considers "lynx to be a species associated with old growth forest." (Id. at 22 (citing Doc. 6-2 at 59, 61).)

         Plaintiffs assert that USFS' statement that Amendment 51 could have "a potential effect on wildlife associated with old growth" coupled with USFS' statement in Amendment 21[2] that lynx "is included on the list of old growth associated species," means that Amendment 51 "may effect" lynx. (Doc. 16 at 8-11.) Additionally, Plaintiffs allege that USFS also states that Amendment 51 "could possibly [have] some beneficial effect to [Threatened, Endangered, or Sensitive ("TES")] wildlife" immediately succeeding a discussion of Amendment 51 's effect on bald eagles, peregrine falcons, and lynx, meaning that Amendment 51 is considered to have a potential beneficial effect on lynx. (Doc. 6 at 27 (quoting D-10:NH003247).) Plaintiffs contend that these statements clearly indicate that Amendment 51 may have an effect on lynx.

         "An agency has a duty to consult under Section 7 of the ESA for any discretionary agency action that may affect a listed species or designated critical habitat." Karuk Tribe of California v. U.S. Forest Service, 681 F.3d 1006, 1027 (9th Cir. 2012) (internal quotation marks and citation omitted). Plaintiffs assert that Defendants failed to "conduct ESA Section 7 consultation on Amendment 51 for lynx or lynx critical habitat" despite the fact that Amendment 51 may affect lynx. (Doc. 6 at 28.) Plaintiffs seek a preliminary injunction enjoining the North Hebgen Project while this Court determines the merits of their claim. As Plaintiffs' Motion relies partially on the supplementation of the record, the Court begins by addressing Defendants' Motion to Strike Amendment 21 from the record.

         I. Defendant's Motion to Strike

         ESA claims are reviewed under the Administrative Procedures Act ("APA") "irrespective of whether an ESA claim is brought under the APA or the citizen-suit provision." Alliance for the Wild Rockies v. Krueger, 664 Fed.Appx. 674, 675 (9th Cir. 2016) (internal quotation marks and citation omitted). Judicial review of actions brought under the APA limit the scope of review to the administrative record. Camp v. Pitts, 411 U.S. 138, 142 (1973). The initial presumption is that the agency properly designated the administrative record. Cook Inletkeeper v. EPA, 400 F.3d. Appx. 239, 240 (9th Cir. 2010) (quoting Bar MKRanches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993)). However, the whole administrative record is not necessarily what has been submitted by the agency, because it includes documents and materials both directly and indirectly considered by agency decision-makers. Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 1989).

         Four exceptions to this rule are generally considered for supplementation of an administrative record: (1) when necessary to determine whether the agency has considered all relevant factors and explained its decision, (2) when the agency has relied on documents not in the record, (3) when supplementing the record is necessary to explain technical terms or complex subject matter, or (4) when plaintiffs make a showing of agency bad faith. Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir. 2006) (citing Southwest Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996)). Plaintiffs quote Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 497 (9th Cir. 2011) for the proposition that the APA does not limit this Court to solely the administrative record when reviewing an ESA claim. (Doc. 15 at 2-3.) This Court has held that

Kraayenbrink leaves us uncertain whether the panel discarded the APA record review rule entirely or simply found that the extra-record documents presented to the district court in that case fit within one of the four standard exceptions outlined above. The better view, in the opinion of this Court, is that the traditional four exceptions still apply to plaintiffs' requests for supplementation of the administrative record for ESA claims, but the narrowness of the construction and application of these exceptions, see Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir.2005) ("these exceptions are narrowly construed and applied"), should be relaxed for such claims.

Alliance for the Wild Rockies v. Kruger, 950 F.Supp.2d 1172, 1177 (D. Mont. 2013). Absent more conclusive guidance, the Court maintains this position regarding the applicability of the Ninth Circuit's statements in Kraayenbrink to the four exceptions for supplementation of the administrative record.

         Plaintiffs bear the burden of establishing that the proposed extra-record submissions fit within these relaxed exceptions in this case. Ctr. for Biological Diversity, 450 F.3d at 943. Here, however, Plaintiffs have presented no argument concerning the application of any of the four exceptions. Nonetheless, the Court finds Plaintiffs' statement made during oral argument-that they included Amendment 21 to provide a quotation from the Forest Service saying that lynx are an old growth associated species-amenable to application of the third exception. Amendment 21 states that "lynx [are] included on the list of old growth associated species." (Doc. 6-2 at 59.) Although the Court remains without an explanation for why Plaintiffs neglected to approach supplementation in this manner, the Court is satisfied that it is within the Court's discretion to allow supplementation of the record to explain that lynx are an old growth associated species. Consequently, Defendant's Motion to Strike will be denied and the Court declines to address the Parties' additional arguments on this point.

         II. Motion for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.