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Native Ecosystems Council v. Marten

United States District Court, D. Montana, Missoula Division

November 19, 2018

NATIVE ECOSYSTEM COUNCIL, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
v.
LEANNE MARTEN, et al., Defendants, and MONTANA WOOD PRODUCTS ASSOCIATION, et al., Defendant-Intervenors.

          OPINION AND ORDER

          DONALD W. MOLLOY, DISTRICT JUDGE UNITED STATES DISTRICT JUDGE

         This 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.

         Background

         I. Montana Landscape Designation

         In 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. Id; AR0003722-23.

         For a 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. §6591b(e), (f).

         II. The Moose Creek Vegetation Project

         The 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.

         The 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.[1]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.

         III. Procedural History

         Plaintiffs 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).

         In May 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.

         In May 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.)

         Legal Standards

         I. Administrative Procedure Act

         NEPA 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].").[2] 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 ...


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