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Native Ecosystems Council v. Marten

United States District Court, D. Montana, Missoula Division

December 10, 2018

NATIVE ECOSYSTEMS COUNCIL and MONTANA ECOSYSTEM DEFENSE COUNSIL, Plaintiffs,
v.
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.

          ORDER

          Dana L. Christensen, Chief Judge

         Before 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.

         Background

         Plaintiffs 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").

         I. National Forest Management Act

         Defendant, 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).

         The 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.

         II. National Environmental Policy Act

         The 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.

         NEPA's "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).

         However, 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.

         Here, the Forest Service applied a categorical exclusion to the Johnny Crow Project in its effort to comply with the demands of NEPA.

         III. The Elkhorn Wildlife Management

         Unit 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.

         Because 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 collaboration.

         The 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 22565.

         Treatment 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 24515.

         It 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.

         Owing 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.

         This 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.

         Because 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.

         Legal Standards

         I. Summary Judgment

         A party 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. at 248.

         II. Administrative Procedures Act

         Judicial 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.)

         The 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).

         The 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 deference." Id.

         Discussion

         Before 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).

         I. Plaintiffs' Motion to Supplement the Administrative Record and Defendants' Motion to Strike

         Contemporaneously 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.

         In 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 ...


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