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. Krueger

United States District Court, D. Montana, Missoula Division

October 15, 2018

NATIVE ECOSYSTEMS COUNCIL, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
v.
FAYE KRUEGER, Regional Forester of Region One of the United States Forest Service, UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture, and UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the United States Department of Interior, Defendants.

          ORDER

          Dana L. Christensen, Chief Judge

         Before the Court is Federal Defendants' Motion to Alter Judgment and Dissolve Injunction (Doc. 55). On May 24, 2013, this Court enjoined the Fleecer Mountains Project ("the Project") until the Forest Service and Fish and Wildlife Service ("FWS") corrected certain deficiencies under the National Environmental Policy Act ("NEPA") and the Endangered Species Act ("ESA") identified in this Court's remand order. (Doc. 27.)

         There, Plaintiffs claimed that the Project and the Beaverhead-Deerlodge National Forest Plan ("Forest Plan") violated various environmental laws because the Forest Service failed to complete consultation with the FWS regarding the potential effects of the "Project and Plan on grizzly bears and Canada lynx." Native Ecosystems Council v. Krueger, 946 F.Supp.2d 1060, 1066 (D. Mont. 2013). In addition, Plaintiffs argued that the Forest Plan and Project failed to disclose and apply the best available science in its decision to exclude temporary, permitted, and administrative roads from road density calculations and failed to discuss the impact of temporary roads on elk. Id. This Court agreed, and enjoined the Project until the Forest Service and FWS corrected the deficiencies pertaining to lynx, grizzly bears, roads, and elk. Id. at 1067.

         For the reasons explained, the Court denies the motion to dissolve the injunction. The Court will address each issue below.

         Legal Standard

         This Court "retains the power to modify the terms of its injunction in the event that changed circumstances require it." United States v. Oregon, 769 F.2d 1410, 1416 (9th Cir. 1985) (citations omitted). A court may "relieve a party or its legal representative from a final judgment, order, or proceeding [if] the judgment has been satisfied, released or discharged." Fed.R.Civ.P. 60 (b)(5). A party seeking a dissolution of an injunction may demonstrate that the change is warranted by showing "a significant change either in factual conditions or in law." Alliance for the Wild Rockies v. Weldon, 2011 WL 3348000, at *2 (D. Mont. Aug. 3, 2011) (quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384 (1992)). A significant change in facts occurs when a party demonstrates its compliance with a court's remand order. Sharp v. Weston, 233 F.3d 1166, 1170 (9th Cir. 2000).

         Discussion

         I. Lynx

         In its remand order, the Court instructed the agencies "to consider whether lynx 'may be present' in the Forest" and to "complete any consultation that might become necessary''' as a result of that determination. Native Ecosystems Council, 946 F.Supp.2d at 1067 (emphasis added). The FWS subsequently determined that lynx "may be present" across the Beaverhead-Deerlodge National Forest. (Doc. 56-7 at 1.) This caused the Forest Service to develop and issue a biological assessment in which the agency concluded that the Project "may affect, but is not likely to adversely affect" lynx. (Doc. 56-8 at 1, 3-4.) The FWS concurred. (Id.)

         Federal Defendants now argue that the Court should lift the injunction because the agencies have complied with the Court's remand instructions. (Doc. 56 at 6.) Plaintiffs disagree, and argue that the site-specific biological assessment is insufficient because it does not examine the effects that the Forest Plan may have on lynx. (Doc. 63 at 28.) Plaintiffs argue that forest-wide consultation became necessary when the FWS determined that lynx "may be present" across the entire Beaverhead-Deerlodge National Forest. (Id. at 29.) In light of this unfulfilled requirement, Plaintiffs assert that the Project must remain enjoined until Federal Defendants fully comply with the Court's order. (Id. at 30.) In response, Federal Defendants assert that this Court never ordered a programmatic consult and that such consult never became "necessary." (Doc. 65 at 13.) Federal Defendants further argue that even if the Court determines that forest-wide consultation was and is required, the Court could still allow the Project to go forward. (Id. at 14.)

         Federal Defendants final argument misconstrues the standard of review. The narrow question before the Court is whether Federal Defendants fully complied with the remand order. For reasons more fully explained, the Court concludes that it did not.

         From the beginning, Plaintiffs asserted both a site-specific and programmatic challenge concerning lynx. See Native Ecosystems Council, 946 F.Supp.2d at 1066 ("Plaintiffs claim that the Project and the Forest Plan violate Section 7 of the Endangered Species Act"). Neither party disputes that the Forest Service and FWS discharged their obligations concerning the Project. (Docs. 56 at 9; 63 at 29.) The issue is whether the FWS's determination that lynx "may be present" on the Beaverhead-Deerlodge National Forest rendered forest-wide consult necessary. To determine what is necessary, the Court turns to the ESA and its implementing regulations.

         "The ESA requires the Secretary of the Interior to promulgate regulations listing those species of animals that are 'threatened' or 'endangered' under specified criteria, and to designate their 'critical habitat.'" Bennett v. Spear, 520 U.S. 154, 157-58 (1997) (citing to 16 U.S.C. § 1533). The ESA also requires each federal agency to ensure that an agency action is not likely to jeopardize the continued existence of a threatened or endangered species. 16 U.S.C. § 1536(a)(2). An "action" is "all activities or programs of any kind authorized, funded, or carried out... by Federal agencies." 50 C.F.R. § 402.02. Forest plans constitute ongoing agency action. Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1053 (9th Cir. 1994); Lane County Audubon Soc'y v. Jamison, 958 F.2d 290, 293 (9th Cir. 1992); Salix v. U.S. Forest Serv., 944 F.Supp.2d 984, 986 (D. Mont. 2013) off d in part, rev'd in part sub. nom. Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015) (stating that "Pacific Rivers remains good law in this Circuit" and holding that a programmatic plan is subject to section 7 consultation in certain circumstances).

         The Forest Service's first step in complying with section 7 is to obtain from the FWS "a list of any listed or proposed species or designated or proposed critical habitat that may be present in the action area." 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12(c)-(d) (emphasis added). If the FWS advises that a listed species or critical habitat "may be present," the Forest Service must complete a biological assessment to determine if the proposed action "may affect" or is "likely to adversely affect" the listed species. 16 U.S.C. § 1536(c)(1); 50 C.F.R. §§ 402.12(f), 402.14(a), (b)(1); Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir. 2006). If the Forest Service determines that an action "may affect" a listed species, the Forest Service must consult with the FWS under section 7 of the ESA. Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1027 (9th Cir. 2012). Consultation may be formal or informal. 50 C.F.R. § 402.14; Karuk Tribe of Cal., 681 F.3d at 1027. Formal consultation is obligatory where the Forest Service has determined that an action is "likely to adversely affect a listed species." 50 C.F.R. § 402.14 (a)-(b). But where the Forest Service determines that an action "may affect... [but is] not likely to ... adversely affect[]" a listed species, the Forest Service may initiate informal consultation. 50 C.F.R. §§ 402.14(a), 402.12(a). If the FWS concurs with the Forest Service's determination that a listed species "is not likely to be adversely affected," both agencies have fulfilled their respective obligations and the federal action may proceed. 50 C.F.R. § 402.13(a).

         As indicated by Pacific Rivers Council and Lane County Audubon Society, the Beaverhead-Deerlodge National Forest Plan is an ongoing agency action that falls within the purview of the ESA, therefore requiring consultation with the FWS to determine whether any listed species may be present within the forest. In response to this Court's remand order, the FWS issued a new species list for the entire Beaverhead-Deerlodge National Forest, and determined that Lynx "may be present" on the forest as secondary or peripheral lynx habitat. (Doc. 56-7 at 1.) The FWS placed no geographic limitation on where lynx "may be present" as it did with bull trout (which "may be present" in the Clark Fork, Flathead, Kootenai, St. Mary, and Bell river basins, including cold water rivers and lakes) and wolverines (which "may be present" in high elevation alpine and boreal forests that are cold and receive enough winter precipitation to reliably maintain deep persistent snow late into the warm season). (Id.) For this reason, the logical conclusion is that the FWS's determination indicates that lynx "may be present" across the entire forest.

         This was new information. Whereas the agencies had previously measured the potential effects of the Forest Plan on grizzly bears, bull trout, and wolves, the same was not done for lynx. (Doc. 63 at 28.) Therefore, unless there is some other reason why a biological assessment or biological opinion was not required to determine whether the Forest Plan "may affect" lynx, Federal Defendants have not fulfilled their obligation under the Court's remand order.

         At a hearing on this motion, Federal Defendants argued for the first time that programmatic consultation for lynx was not required because the FWS recently issued a biological opinion and determined that the Lynx Amendment is not likely to adversely affect lynx. The Lynx Amendment sets programmatic direction to protect lynx from certain actions that are likely to adversely impact lynx habitat. Cottonwood Envtl. Law Ctr., 789 F.3d at 1078. The Lynx Amendment has been incorporated into eighteen national forest plans. Id. At the hearing, Federal Defendants indicated that the Lynx Amendment standards were incorporated into the Beaverhead-Deerlodge National Forest Plan in 2009. Without citation to any legal authority, Federal Defendants argue that this consultation satisfies any further need for forest-wide analysis.

         It is true that the Ninth Circuit's recent opinion in Alliance for the Wild Rockies v. Savage concluded that a plaintiffs section 7 Lynx Amendment consultation claim was moot in light of the FWS's recent biological opinion measuring the effects of the Lynx Amendment on lynx and lynx critical habitat. 897 F.3d 1025, 1029, 1031 (9th Cir. 2018). However, the holding in Savage does not render any and all programmatic challenges concerning lynx moot. Savage is limited to section 7 claims within areas governed by the Lynx Amendment, namely, Lynx Analysis Units. Because there are provisions of the Forest Plan other than the Lynx Amendment that "may affect" lynx outside of the areas protected by the Lynx Amendment, and because the FWS determined that lynx "may be present" throughout the forest, a plaintiff may still bring a section 7 consultation claim to the broader Forest Plan itself. See Native Ecosystems Council v. Marten, 2018 WL 3831339, at *4 (D. Mont. Aug. 13, 2018) (stating that "the Lynx Amendment only applies to mapped lynx habitat on National Forest System land presently occupied by Canada ...


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.