United States District Court, D. Montana, Missoula Division
NATIVE ECOSYSTEMS COUNCIL and MONTANA ECOSYSTEM DEFENSE COUNSIL, Plaintiffs,
LEANNE MARTEN, Regional Forester of Region One of the U.S. Forest Service, and BILL AVEY, Supervisor of the Helena-Lewis and Clark National Forest, Defendants.
L. Christensen, Chief Judge
the Court are Plaintiffs' Motion for Summary Judgment
(Doc. 10), Motion to Supplement the Record (Doc. 13), and
Motion for Leave to File Amended Complaint (Doc. 19), as well
as Defendants' Motion to Strike Declarations of Sara Jane
Johnson and Jeff Juel (Doc. 17) and Cross-Motion for Summary
Judgment (Doc. 22). As regards summary judgment, the Court
will grant Defendants' Motion and deny Plaintiffs'
Motion. Additionally, the Court will grant Plaintiffs'
Motion to Amend the Complaint and Motion to Supplement but
will deny Defendants' Motion to Strike.
challenge the Defendants' approval of the Johnny Crow
Wildlife Habitat Improvement Project ("the Johnny Crow
Project" or "the Project") under the National
Environmental Protection Act and the National Forest
Management Act. Plaintiffs seek declaratory and injunctive
relief. The Johnny Crow Project is a non-commercial habitat
enhancement project in the Elkhorn Wildlife Management Unit
("Elkhorn WMU") of the Helena-Lewis and Clark
National Forest ("HNF" or "the Forest").
National Forest Management Act
the United States Forest Service ("Forest
Service"), manages the National Forests pursuant to the
duties and obligations established in part by the National
Forest Management Act of 1976 ("NFMA"). See 16
U.S.C. §§ 1600-1614. The NFMA and its implementing
regulations provide for forest planning at two levels: the
forest level and the individual project level. See
Id. At the forest level, the Forest Service develops
a Land and Resource Management Plan (also known as a
"forest plan"), which is a broad, long-term
planning document ensuring consideration of both economic and
environmental factors for a National Forest- the
administrative unit of the National Forest System. A forest
plan establishes planning goals and objectives for management
of the forest resources within a specific National Forest. 16
U.S.C. § 1604(g)(1)-(3). The Forest Service implements a
forest plan through individual projects-site-specific actions
such as resource management plans-that must be consistent
with the governing forest plan. 16U.S.C. § 1604(i).
governing forest plan in this case is the Helena National
Forest Plan ("HNFP" or "the Forest Plan")
established in 1986 for the management of the Helena-Lewis
and Clark National Forest. More specifically, this case
arises within the Elkhorn Wildlife Management Unit
incorporated into the HNFP.
National Environmental Policy Act
National Environmental Policy Act ("NEPA") requires
the Forest Service to take a "hard look" at the
potential environmental consequences of proposed actions
before making a final decision to proceed. Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 350
(1989). NEPA itself "does not mandate particular
results, but simply prescribes the necessary process."
Id. In essence, "NEPA merely prohibits
uninformed-rather than unwise-agency action." Mat351.
"necessary process" requires the Forest Service to
prepare a detailed environmental impact statement
("EIS") for "major Federal actions
significantly affecting the quality of the human
environment." 42 U.S.C. § 4332(C). Consequently, a
"threshold question in a NEPA case is whether a proposed
project will 'significantly affect' the environment,
thereby triggering the requirement for an EIS." Blue
Mountains Biodiversity Project v. Blackwood, 161 F.3d
1208, 1212 (9th Cir. 1998) (quoting 42 U.S.C. §
4332(C)). As a preliminary step, the Forest Service may
prepare an environmental assessment ("EA") to
determine whether the environmental impact of the proposed
action is "significant enough to warrant preparation of
an EIS." Id. (citing 40 C.F.R. § 1508.9).
An EIS is a "detailed statement" on, among other
things, the "environmental impact of [a] proposed
action" and "alternatives to the proposed
action," 42 U.S.C. § 4332(C), while an EA is a
"concise public document" which serves to
"provide sufficient evidence and analysis for
determining whether to prepare an [EIS] or a finding of no
significant impact," 40 C.F.R. § 1508.9(a).
in limited cases, neither an EA nor an EIS is required. A
federal agency need do neither if the agency determines that
the proposed action falls within an established categorical
exclusion. 36 C.F.R. § 220.6(a); 40 C.F.R. §
1508.4. Categorically excluded actions are those actions
"which do not individually or cumulatively have a
significant effect on the human environment and which have
been found to have no such effect in procedures," id.,
which have been adopted by any agency of the Federal
Government which is implementing the mandatory
"procedural provisions of the National Environmental
Policy Act," 40 C.F.R. § 1500.3. Nonetheless, prior
to an agency's use of a categorical exclusion, it must
make allowances for "extraordinary circumstances in
which the normally excluded action may have a significant
environmental effect." 40 C.F.R. § 1508.4. Thus, an
action may be categorically excluded only if it falls within
certain enumerated categories and "there are no
extraordinary circumstances related to the proposed
action." 36 C.F.R. § 220.6(a). Otherwise, the
agency is required to prepare either an EA or EIS.
the Forest Service applied a categorical exclusion to the
Johnny Crow Project in its effort to comply with the demands
The Elkhorn Wildlife Management
The Elkhorn Mountains are located approximately 16 miles
southeast of Helena, Montana. They are unique in the National
Forest System because Forest Service ownership extends
"over most of the foothills down to the surrounding
valley floors," a large proportion of elk winter range
exists on that Forest Service land, and there is a
"diversity of habitat and lack of development." AR
1614. Consequently, the Elkhorns were once considered for
"inclusion in the Wilderness Preservation System."
AR 1615. Ultimately, however, the Elkhorns were instead
recommended to become a wildlife management unit after
completion of the Final Elkhorn Wilderness Study Report and
accompanying Final Environmental Impact Statement
("FEIS"). AR 1615-1619. The Elkhorns became the
first and only wildlife management unit in the National
Forest System. AR4O42. One of the criteria for the
establishment of the Elkhorn WMU in the HNFP was that
"[w]ildlife habitat will be managed to maintain viable
population of species associated with existing ecosystems,
with an emphasis on selected species that have seclusion as
one of their habitat requirements." AR 24383; AR 25840.
Additionally, land management activity for "other
resource values will be considered when they are compatible
with management direction for wildlife." AR 25840.
of the "almost total public ownership," the
Elkhorns allow "near complete management of the mountain
range." AR 1614. The management direction of the HNFP
"emphasizes maintenance and enhancement" of habitat
for both big game and non-game species. AR 16-17; AR 22561.
Although the HNFP established this management direction for
the entire forest, it also divides the National Forest land
within the Helena National Forest into twenty-three separate
"management areas" which are each subject to
additional and individualized "management goals,
resource potentials, and limitations." AR 24549. The
management of the Elkhorns is undertaken in partnership as
the Elkhorn Cooperative Management Area by the Bureau of Land
Management, Butte Field Office, the Montana Department of
Fish, Wildlife and Parks, the Natural Resource Conservation
Service, the Army National Guard, and the United States
Forest Service. AR 3763; AR 22563. These groups formalized a
cooperative management strategy in a 1999 Memorandum of
Understanding which provides that "[e]cosystem
[m]anagement is the umbrella concept in management of the
Elkhorns" and "[w]ildlife values ... are the major
emphasis item on National Forest Lands." AR 4029. The
Johnny Crow Project is the product of years of this
Johnny Crow Project is intended to "maintain and enhance
desired vegetative conditions that provide habitat for a
variety of wildlife species." AR 22561. Specifically,
the project intends to "improve forage on elk and mule
deer winter and summer range," "enhance nesting
habitat for bird species that rely on grass and shrubland
habitats," "increase riparian vegetation diversity
for moose, mule deer, and westslope cutthroat trout,"
"promote age class and tree species diversity within
conifer stands in order to improve elk calving and summer
habitat;" and "encourage growth and expansion of
whitebark pine." AR 22561-62. To achieve these ends, the
Project proposes hand slashing followed by "broadcast
prescribed fire where applicable" on an estimated 9, 565
acres of grassland and shrublands; hand slashing possibly
combined with "low-severity prescribed fire through
indirect ignition" on an estimated 460 acres of
riparian, wetland, and aspen habitat; "[m]ixed severity
prescribed fire" on an estimated 3, 000 acres of
forested areas; and "hand slashing and/or girdling"
on an estimated 500 acres of Five-Needle Pine habitat. AR
22565. The objective of most of these treatments is to
"improve foraging habitat" for several wildlife
species, including elk and mule deer. AR 22563. Additionally,
the estimated amount of treated acres is expected to be less
than listed and will be determined based upon site conditions
and "what will best meet the purpose and need." AR
activities are proposed to occur within four of the
management areas designated by the HNFP within the Elkhorn
WMU. AR 22566. Those include Elkhorn-1, Elkhorn-2, Elkhorn-3,
and the Elkhorn Inventoried Roadless Area. AR 22566. Within
Elkhorn-1, the Forest Service is obligated to
"[i]mplement wildlife habitat improvement practices,
particularly prescribed fire, to maintain and enhance the
quality of elk winter range." AR 726; AR 24630. Within
Elkhorn-2, the Forest Service is to "[i]mplement
wildlife improvement practices to maintain and enhance
mountain goat and summer elk habitat." AR 728; AR 24633.
Within Elkhorn-3, the Forest Service is required to
"[i]mplement wildlife habitat improvement practices,
including prescribed fire and timber management, to maintain
and enhance the quality of elk calving and summer
habitat." AR 729; AR 24635. Suggested habitat
improvement projects within these three management areas are
to be "provided in the Elkhorn Wildlife Monitoring
Program annual progress reports." AR 726; AR 728-29; AR
24639; AR 24633; AR 24635. Across the Helena National Forest,
inventoried roadless areas, including the Elkhorn Inventoried
Roadless Area involved here, are managed for
"semi-primitive recreation and wildlife values." AR
appears that the overriding methodology for achieving the
Johnny Crow Project's goals is to remove "colonizing
conifers" in the areas intended to be treated. AR
22561-62. The Project does not authorize cutting down trees
or prescribed fire ignitions "in forested inclusions
(islands of mature timber within a grass or shrubland)."
AR 4521. Indeed, the Project ensures that prescribed
"fire ignitions would be designed to avoid forested
inclusions and limber pine stands to the extent
feasible" and, in relation to riparian or wetland
habitats, no direct ignition will occur-instead, fire will
passively "be allowed to creep into the habitat."
AR 4521-22. The project does not authorize the removal of
commercial products and will not include new road
construction, reconstruction, or maintenance. In fact, no
large mechanized equipment will be involved and "access
will remain unchanged." AR 22563. Nor will herbicides be
applied. AR 22565. In short, the treatments proposed by the
Johnny Crow Project are minimalist in both impact and scope.
to the low-impact nature of the Project, it was approved
under 36 C.F.R. § 220.6, which provides for the
categorical exclusion of certain treatment activities from
the Forest Service's typical obligation to prepare an EA
or EIS. 36 C.F.R. § 220.6(e)(6) enumerates a category of
activity to be excluded which includes:
(6) Timber stand and/or wildlife habitat improvement
activities that do not include the use of herbicides or do
not require more than 1 mile of low standard road
construction. Examples include, but are not limited to:
(i) Girdling tree to create snags;
(ii) Thinning or brush control to improve growth or to reduce
fire hazard including the opening of an existing road to a
dense timber stand;
(iii) Prescribed burning to control understory hardwoods in
stands of southern pine; and (iv) Prescribed burning to
reduce natural fuel build-up and improve plant vigor.
category was deemed applicable "because the evidence
presented in the project record ... demonstrate[s] that the
cause-effect relationship between the actions in [the Johnny
Crow Project Decision Memorandum] and the degree of the
effects on the resource conditions result in no extraordinary
circumstances." AR 22566.
the Forest Service determined that the Johnny Crow Project
falls within the wildlife habitat improvement category
provided at 36 C.F.R. § 220.6(e)(6) and that there are
no extraordinary circumstances precluding use of that
exempted category of activities, the project was exempted
from the requirement to complete an EA or EIS and was
approved in a March 2, 2017 Decision Memorandum. AR 22564; AR
22571. Plaintiffs initiated this suit on June 6, 2017.
is entitled to summary judgment if it can demonstrate that
"there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). Summary judgment is warranted where the
documentary evidence produced by the parties permits only one
conclusion. Anderson v. Liberty Lobby, Inc., All
U.S. 242, 251 (1986). Only disputes over facts that might
affect the outcome of the lawsuit will preclude entry of
summary judgment; factual disputes that are irrelevant or
unnecessary to the outcome are not considered. Id.
Administrative Procedures Act
review of agency decision under NFMA and NEPA are governed by
the Administrative Procedures Act ("APA").
Neighbors of Cuddy Mountain v. Alexander, 303 F.3d
1059, 1065 (9th Cir. 2002). Under the APA "[a] person
suffering a legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the
meaning of a particular statute, is entitled to judicial
review thereof." 5 U.S.C. § 702. An agency action
may be set aside under the APA only if it was
"arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law." 5 U.S.C.
§ 7O6(2)(A). "The standard is deferential."
River Runners for Wilderness v. Martin, 593 F.3d
1064, 1070 (9th Cir.2010.)
arbitrary and capricious standard applies to this Court's
analysis of Plaintiffs' NFMA claims. Forest Guardians
v. U.S. Forest Service, 329 F.3d 1089, 1096-97 (9th Cir.
2003) ("Agency actions challenged under the NFMA ... may
be set aside only if they are arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with the
law.") Accordingly, the Court must determine whether the
agency's decision was "based on a consideration of
the relevant factors and whether there has been a clear error
of judgment." Id. at 1097. Particular to a NFMA
case, when the Court is called upon to interpret the
requirements of the Forest Service's own Forest Plan, the
Forest Service "is entitled to substantial deference to
its interpretation of its own regulations." Id.
"Judicial 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." Id.; Klamath
Siskiyou Wildlands Center v. Grantham, 642 Fed.Appx.
742, 744 (9th Cir. 1016).
arbitrary and capricious standard again applies, as is the
case with Plaintiffs' NEPA claims, "to an
agency's determination that a particular action falls
within one of its categorical exclusions." Bicycle
Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1456
(9th Cir. 1996). When the Forest Service decides to proceed
with an action in the absence of an EA or EIS, it "must
adequately explain its decision." Alaska Center for
Environment v. U.S. Forest Service, l89F.3d85l, 859 (9th
Cir. 1999). To determine whether the Forest Service's
action is arbitrary or capricious, this Court "must
consider whether the decision was based on a consideration of
the relevant factors and whether there has been clear error
of judgment." Id. (internal quotation marks and
citation omitted). "Once the agency considers the proper
factors and makes a factual determination on whether the
impacts are significant or not, that decision implicates
substantial agency expertise and is entitled to
wading into a discussion of the merits of the Parties'
cross-motions for summary judgment, the Court finds it
beneficial to dispense with three preliminary issues: 1)
Plaintiffs' Motion to Supplement the Administrative
Record (Doc. 13) and Defendants' responding Motion to
Strike (Doc. 17); 2) Plaintiffs' Motion to Amend the
Complaint (Doc. 19); and 3) the applicability of this
Court's prior decision in American Wildlands &
Native Ecosystems Council v. U.S. Forest Service, No. CV
99-160-M-DWM, Doc. 40; 1999 U.S. Dist. LEXIS 22243 (D. Mont.
Apr. 14, 1999).
Plaintiffs' Motion to Supplement the Administrative
Record and Defendants' Motion to Strike
with the filing of their summary judgment motion,
Plaintiffs' filed a Motion to Supplement the
Administrative Record with the declarations of Sara Jane
Johnson, Ph.D. ("Dr. Johnson"), and Jeff Juel
("Juel"). (Doc. 13 at 1.) Dr. Johnson is the
director of Plaintiff Native Ecosystems Council and spent 14
years working as a wildlife biologist for the Forest Service.
(Doc. 13-1 at 2.) Juel's declaration reviews the analysis
of the Project on the Elkhorns Inventoried Roadless Area.
(Doc. 13-2.) Defendants' there after filed a Motion to
Strike the Declarations of Dr. Johnson and Juel (Doc. 17).
Defendants argue that Plaintiffs have failed to carry their
burden of proving that extra-record evidence is necessary in
this case. This Court disagrees.
general, judicial review of agency action under the APA must
be limited to the administrative record. San Luis &
Delta-Mendota Water Auth. v. Locke,776 F.3d 971, 992
(9th Cir. 2014). This rule is designed to ensure that the
reviewing court gives the agency action appropriate
deference. Id. 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.'" Id. (quoting Marsh v.
Oregon Natural Resources Council,490 U.S. 360, 378
(1989)). Consideration of extra-record evidence "to
determine the correctness of or wisdom of the agency's
decision is not permitted" and, in particular, expert
testimony should not be admitted ...