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Alliance for the Wild Rockies v. Probert

United States District Court, D. Montana, Missoula Division

October 3, 2019

ALLIANCE FOR THE WILD ROCKIES, Plaintiff,
v.
CHERYL PROBERT, [1] Kootenai National Forest Supervisor, et al, Defendants.

          OPINION AND ORDER

          DONALD W. MOLLOY, DISTRICT JUDGE

         This case concerns previously adjudicated road closures in the Kootenai National Forest. In October 2013, Plaintiff Alliance for the Wild Rockies ("Alliance") brought an action under the National Environmental Policy Act ("NEPA"), National Forest Management Act ("NFMA"), and Endangered Species Act ("ESA"), arguing that the Pilgrim Creek Timber Sale Project ("Pilgrim Project") would create a net increase in linear miles of total roads in violation of Standard 11(B) of the 2011 Access Amendments to the Kootenai National Forest Plan. Judge Christensen ultimately held that the Project complied with the Access Amendments, see All. for the Wild Rockies v. Bradford, 35 F.Supp.3d 1246 (D. Mont. 2014), and the Ninth Circuit affirmed, All. for the Wild Rockies v. Bradford, 856 F.3d 1238 (9th Cir. 2017). The Ninth Circuit deferred to the Forest Service's interpretation of the Access Amendments, concluding it was reasonable for the agency to exclude roads closed to motorized access by berms or barriers from "linear miles of total roads." Id. at 1243. The court warned, however, that "any closure that fails to effectively prevent motorized access fails to comply with Standard 11(B) of the Access Amendments." Id. (emphasis added). This case arises out of that cautionary language.

         Based on allegations of illegal use precipitated by ineffective closures, Alliance brought claims under NEPA, NFMA, and the ESA. Alliance's NFMA claims and part of its NEPA claim have been dismissed. (See Order, Doc. 23.) The remaining issues are: (1) whether the agencies must reinitiate ESA Section 7 consultation regarding the Access Amendments and/or Pilgrim Project; (2) whether there is unpermitted ESA Section 9 take regarding the Access Amendments and/or the Pilgrim Project; and (3) whether the Forest Service must prepare a supplemental environmental impact statement ("EIS") for the Pilgrim Project.

         There are three motions before the Court. Alliance first seeks to supplement the administrative record with, or have the Court take judicial notice of, two documents: (1) a 2016 journal article on the population status of the Cabinet-Yaak grizzly bear population (the "Kendall article") and (2) the documents listed in the "Literature Cited" section of the United States Fish and Wildlife Service's 2011 Biological Opinion on grizzly bears for the Access Amendments. (Doc. 32.) The parties have also filed cross-motions for summary judgment. (Docs. 36, 40.) Alliance's motion to supplement is denied but its motion for summary judgment is granted.

         Factual Background

         I. Access Amendments

         In November 2011, the Forest Service amended the Forest Plans of the Kootenai, Idaho Panhandle, and Lolo National Forests to include wheeled motorized vehicle access and security guidelines. AR283:001790. The "Access Amendments" set standards for open and total roads, [2] and security areas for Bear Management Units ("BMUs") within the Selkirk Recovery Zone on the Idaho Panhandle National Forest and the Cabinet-Yaak Recovery Zone on the Kootenai, Idaho Panhandle, and Lolo National Forests. AR283:001790-91. Individual open and total motorized access density and core area standards were set for each of the thirty BMUs. AR284:001564-66. More specific to the present case, the Access Amendments also set limits on linear miles of open and total roads, known as the "2010 baseline," for each of the seven "Bear Outside Recovery Zone" polygons ("BORZ areas"). AR283:001790. These areas are outside the Recovery Zones but experience recurring use by grizzly bears. AR283:001790. The Priest Lake, Pack River, and Mission-Moyie BORZ areas fall within the Idaho Panhandle National Forest, while the Cabinet Face, Clark Fork, West Kootenai, and Tobacco BORZ areas fall within the Kootenai National Forest. See AR283:001792-93.

         II. Pilgrim Project

         In 2013, the Forest Service approved the Pilgrim Project, AR14:000969, which authorizes timber harvest on the Kootenai National Forest in order to "maintain[] and increas[e] forest resilience to insects, disease and disturbance ... and improv[e] big game forage production while providing support to the local economy through commercial timber harvest," AR14:000985. The Project is located entirely within the Clark Fork BORZ area. AR14:001001. The Forest Service's 2013 Record of Decision authorized the construction of approximately 4.7 miles of new permanent roads during Project implementation. AR14:001010. As mentioned above, Alliance previously challenged the Project on the grounds that barriered roads should have counted toward linear miles of total roads. The Ninth Circuit concluded, however, that the mileage was properly omitted, assuming the closures were effective. All. for the Wild Rockies, 856 F.3d at 1243.

         Summary Conclusion

         Defendants concede that in developing the Access Amendments and approving the Pilgrim Project, the agencies assumed road closures were effective and they did not specifically consider the environmental impacts of illegal use caused by ineffective closures. Defendants insist, however, that temporary increases in mileage above baseline levels was explicitly contemplated in and allowed by the Access Amendments. Alliance persuasively shows that while the agencies' assumptions regarding closure effectiveness may have been reasonable in 2011, data over the last eight years demonstrates that ineffective closures have contributed to increases in linear road miles and potentially impacted grizzly bears in ways not previously considered. Accordingly, reinitiation of consultation for both the Access Amendments and the Pilgrim Project is required. It is less clear whether a supplemental EIS for the Pilgrim Project is required. Ultimately though, because the original NEPA documents for the Project incorrectly assumed all closures were effective, a supplemental EIS is necessary.

         Legal Standard

         NEPA and ESA claims are reviewed under the Administrative Procedure Act ("APA"), which authorizes a court to "compel agency action unlawfully withheld or unreasonably delayed," 5 U.S.C. § 706(1), and to "hold unlawful and set aside agency action, 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). San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). An agency action is unlawfully withheld if the agency fails to take a "discrete agency action that it is required to take," i.e., an action that is "demanded by law," including "agency regulations that have the force of law." Norton v. S. Utah Wilderness All., 542 U.S. 55, 64-65 (2004) (emphasis omitted). Agency action is arbitrary and capricious if the administrative record demonstrates that the "agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43(1983).

         Where an agency's administrative record is complete and constitutes the whole and undisputed facts underlying agency decisionmaking, summary judgment is the appropriate vehicle to address claims under both § 706(1) and (2). City & Cty. of S.F. v. United States, 130 F.3d 873, 877 (9th Cir. 1997) ("[T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.").

         Analysis

         I. Supplementation

         Review under the APA is generally limited to the administrative record that existed at the time the agency made its decision. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971); 5 U.S.C. § 706. Here, Alliance proffers additional documents for consideration: (1) the Kendall article, (Doc. 33-1), and (2) the documents listed in the "Literature Cited" section of the United States Fish and Wildlife Service's 2011 Biological Opinion on grizzly bears for the Access Amendments, (Doc. 33-2). Alliance make three unpersuasive arguments for their consideration: (1) the record for ESA and supplemental EIS claims is not limited by the APA, (2) the proffered documents qualify under certain extra-record exceptions, and (3) the documents can be judicially noticed.

         A. APA Record Limitations

         Alliance first seeks to circumvent the standard extra-records analysis by arguing that both its ESA claim and its claim for a supplemental EIS are not subject to the APA's record limitations. Neither argument is compelling.

         1. ESA

         ESA claims are analyzed under the APA because the ESA contains no internal standard of review. Village of False Pass v. Clark, 733 F.2d 605, 609 (9th Cir. 1984). However, Alliance insists that because ESA claims are actually brought pursuant to the ESA citizen suit provision, they are not subject to the administrative record limitation of the APA. See 5 U.S.C. § 704 (action reviewable under the APA when "there is no other adequate remedy in a court"). In so arguing, Alliance relies on Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 497 (9th Cir. 2011). In Kraayenbrink, the court determined that because claims under the ESA citizen suit provision are distinct from claims under the APA, courts "may consider evidence outside the administrative record for the limited purposes of reviewing ... ESA claim[s]." Id. (citing Wash. Toxics Coal. v. Envtl Prot. Agency, 413 F.3d 1024, 1034 (9th Cir. 2005)). But it is not that simple.

         District courts have interpreted Kraayenbrink differently. Many view it as binding precedent that mandates an open record in ESA cases. See Natural Res. Def. Council v. Zinke, 347 F.Supp.3d 465, 500-01 (E.D. Cal. 2018) ("The Court does not make law and cannot ignore an express holding of the Ninth Circuit that is directly on point.") (collecting cases); see also Indigenous Envtl. Network v. U.S. Dep't of State, CV 17-29/31-GF-BMM, 2017 WL 9280323, at *1 (D. Mont. Dec. 12, 2017). However, this Court has consistently taken a more restrictive view:

Kraayenbrink leaves us uncertain whether the panel discarded the APA record review rule entirely or simply found that the extra-record documents presented to the district court in that case fit within one of the four standard exceptions outlined above. The better view, in the opinion of this Court, is that the traditional four exceptions still apply to plaintiffs' requests for supplementation of the administrative record for ESA claims, but the narrowness of the construction and application of these exceptions, see Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) ("these exceptions are narrowly construed and applied"), should be relaxed for such claims.

All. for Wild Rockies v. Kruger, 950 F.Supp.2d 1172, 1177 (D. Mont. 2013) (internal quotation marks omitted); see Native Ecosystems Council v. Marten, 334 F.Supp.3d 1124, 1129 (D. Mont. 2018); Wildwest Inst. v. Ashe, No. CV 13-6-M-DLC, 2013 WL 12134034, at *2 (D. Mont. Oct. 18, 2013).

         The concern, as stated in Lands Council, is that "[w]ere the federal courts routinely or liberally to admit new evidence when reviewing agency decisions, it would be obvious that the federal courts would be proceeding, in effect, de novo, rather than with the proper deference to agency processes, expertise, and decision-making." 395 F.3d at 1030; see also Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (en banc) (describing ESA case as "a record review case"). Alliance's argument is therefore rejected, and its ESA claims are subject to the same records limitations as other APA cases.

         2. NEPA-Supplemental EIS

         Alliance similarly argues that the extra-record documents may be considered in conjunction with its supplemental EIS claim because it seeks to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). Alliance is correct that "[i]n such cases, review is not limited to the record as it existed at any single point in time, because there is no final agency action to demarcate the limits of the record." Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000). However, the record is not boundless. While a challenge under § 706(1) "allow[s] courts to go beyond the point at which the agency considered the record closed," the APA "limits courts to considering the documents the agency considered directly or indirectly that fall under a record review exception." All. for the Wild Rockies v. Marten, CV 16-35-M-DWM, 2016 WL 7174671, at * 1 (D. Mont. Oct. 3, 2016). As was the case with Alliance's ESA claims, supplementation is limited to documents that meet one of the accepted extra-record exceptions discussed below. See Lands Council, 395 F.3d at 1030.

         B. ' Extra-Record Exceptions

         Alliance argues in the alternative that the proffered documents fit within the recognized extra-record exceptions:

In limited circumstances, district courts are permitted to admit extra-record evidence: (1) if admission is necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) if the agency has relied on documents not in the record, (3) when supplementing the record is necessary to explain technical terms or complex subject matter, or (4) when plaintiffs make a showing of agency bad faith.

Id. (internal quotation marks omitted). Alliance relies on (1) and (3).

         Despite Alliance's characterization, the third exception is not at issue because Alliance has not shown the proffered documents are required to "explain technical terms or complex subject matter." Id. Rather, Alliance emphasizes that consideration of the information is necessary "to determine whether the agency has considered all relevant factors," id., and provide ...


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