United States District Court, D. Montana, Missoula Division
NATIVE ECOSYSTEM COUNCIL, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
LEANNE MARTEN, et al., Defendants, and MONTANA WOOD PRODUCTS ASSOCIATION, et al., Defendant-Intervenors.
OPINION AND ORDER
W. MOLLOY, DISTRICT JUDGE UNITED STATES DISTRICT JUDGE
case concerns challenges to two 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") and (2) approval of the
Moose Creek Vegetation ("Project") via categorical
exclusion. Having considered the plaintiffs' challenges,
summary judgment is granted in favor of the defendants.
Montana Landscape Designation
2014, the Healthy Forests Restoration Act ("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.
Pub. L. No. 113-7, § 8204, 128 Stat. 649, 915-17 (2014
(codified at 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.
AR0003722. At the subsequent request of Montana Governor
Steve Bullock, Forest Service Chief Thomas Tidwell designated
4, 955, 159 acres as threatened landscapes in Montana.
AR0003740. The Project area was part of the Designation.
project to fall within the purview of treatment projects
addressed by HFRA, it must (1) not exceed 3, 000 acres and
(2) be limited to areas in the wildland-urban interface or
Condition Classes 2 or 3 in Fire Regime Groups I, II, or III,
outside the wildland-urban interface. 16 U.S.C. §
6591b(c). Such projects may not establish permanent roads,
but may repair existing roads and construct temporary roads.
16 U.S.C. § 6591b(c)(3). A project cannot be located in
a congressionally designated Wilderness or Wilderness Study
Area, or in areas where the removal of vegetation is
restricted or prohibited by statute or by Presidential
proclamation. 16 U.S.C. § 6591b(d). Additionally, public
scoping must occur and any such project must be consistent
with the applicable land and resource management plan for the
relevant unit of the National Forest System. 16 U.S.C.
The Moose Creek Vegetation Project
Project falls in the Little Belt Mountains within the
Helena-Lewis and Clark National Forest in central Montana.
AR0003722. It is therefore subject to the Lewis and Clark
National Forest Plan (1986). See AR00013 85-982. The
Project area includes commercial harvest and pre-commercial
thinning on approximately 2, 200 acres, AR0003727-28, as well
as road maintenance and road reconstruction, AR0003728. The
Project was initially proposed in March 2016, and scoping was
initiated in September 2016. AR0003739. The plaintiffs
participated in the scoping process. See AR0003982-4278. The
Decision Memo was issued February 27, 2017. AR0003718-62.
purpose of the Project "is to maintain or restore the
structure, function, composition and connectivity of a forest
system that has been adversely affected by insect and
disease." AR0003723. The need for treatment was
determined based on observations of existing conditions,
findings in the Little Belts Landscape Assessment (2014),
information from resource specialists (i.e. insect and
disease aerial detection surveys), and input from
collaborative process participants.AR0003723. Currently, tree
stands in the Project area are experiencing ongoing tree
decline and mortality from insect activity. AR0003725.
"The primary insects and diseases significantly
impacting forest vegetation in the project area are mountain
pine beetle . . ., western spruce budworm . . ., and
lodgepole pine dwarf mistletoe ...." AR0004398.
Treatments include thinning, prescribed fire, and timber
harvesting. AR0003723. The Project "will remove
lodgepole pine susceptible to mountain pine beetle, create
stand conditions with a low mountain pine beetle hazard, and
remove the sources of continual dwarf mistletoe infection to
the lodgepole understory." AR0003725.
Native Ecosystems Council and Alliance for the Wild Rockies
("Plaintiffs") commenced this suit on October 20,
2017. (Doc. 1.) The Complaint makes factual allegations
regarding the violation of the National Environmental Policy
Act ("NEPA"), the Endangered Species Act
("ESA"), the National Forest Management Act
("NFMA"), and the Healthy Forest Restoration Act
("HFRA"). Only three claims are actually pled,
however: (1) the Designation was implemented in violation of
NFMA, ESA, and NEPA, (id. at 20-21); (2) approval of
the Project violated NEPA and NFMA for failing to consider
cumulative impacts of forest thinning, prescribed burning,
and clearcuts, (id. at 21-23); and (3) approval of
the Project violated HFRA, (id. at 23-24).
2018, Plaintiffs filed their substantive summary judgment
briefing, (Doc. 12), and, four days later, sought to amend
their complaint to delete their ESA allegations and add
claims under NFMA, (see Docs. 16, 16-1). That motion
was denied and the part of Plaintiffs' briefing
addressing non-pled claims, (Doc. 12, Section VII), was
stricken. (Doc. 21.) While the original complaint remains
operative, (id.), Plaintiffs have only briefed four
claims. Plaintiffs first argue that the Designation violated
NEPA. The remainder of Plaintiffs' challenges are
project-specific, arguing that the Forest Service failed to
(1) consider cumulative impacts in violation of NEPA; (2)
maximize old growth in violation of HFRA; and (3) consider
the best available science as required by HFRA.
2018, Meagher County and the Montana Logging and Montana Wood
Products Associations were given leave to intervene. (Doc.
22); see Fed. R. Civ. P. 24(a)(2). Additionally, the
State of Montana sought and received leave to file an amicus
brief, focusing on the Project's impact on the
State's mandates to protect public safety and welfare,
promote forest health, minimize wildland fire danger, provide
wildland fire suppression, promote forest products
industries, and protect watersheds from insect and disease
infestation and fire. (Doc. 40.)
Administrative Procedure Act
claims are reviewed under the Administrative Procedure Act
("APA"), which requires 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). Because
HFRA includes no private right of action, agency actions
under HFRA are also reviewed under the APA. Cf. 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 ...