United States District Court, D. Montana, Missoula Division
OPINION AND ORDER
W. MOLLOY, DISTRICT JUDGE
case challenges decisions by the United States Fish and
Wildlife Service and the United States Forest Service
(collectively "Federal Defendants") about the Rock
Creek Mine, a proposed mine that would lie beneath and
adjacent to the Cabinet Mountains Wilderness. Plaintiffs are
tribal and environmental organizations whose members use the
Cabinet Mountains for cultural, spiritual, subsistence, and
recreational activities. They claim Federal Defendants
violated the Endangered Species Act ("ESA") by
failing to reinitiate formal consultation on the mine's
impact to grizzly bears (Claim I), determining the mine will
not jeopardize bull trout (Claim II), and using a habitat
surrogate to establish the mine's authorized incidental
take of bull trout (Claim III). Federal Defendants and
Defendant-Intervenor RC Resources seek judgment on the
pleadings for the Fish and Wildlife Service on Claim I and
for all defendants on Claim III. (Docs. 32, 34.) They argue
that the Fish and Wildlife Service has no obligation to
reinitiate formal consultation under the ESA and therefore
cannot be liable on Claim I and that Plaintiffs lack standing
to assert Claim III. Alternatively, they argue that Claim III
is unripe. For the following reasons, the motions are denied.
Rock Creek Mine is an underground copper and silver mine
proposed near the town of Noxon in Sanders County, Montana.
(Doc. 33-2 at 10.) The ore deposit lies beneath and adjacent
to the Cabinet Mountains Wilderness; however, the mine's
surface facilities and access points, except for a possible
air intake, will be located outside of the wilderness
boundary. (Id.) The mine's implementation is
planned in two phases. (Id.) Phase I, which is
expected to last two years, calls for the construction of an
evaluation adit to obtain ore samples for metallurgical
testing and collect hydrologic and geochemical data.
(Id. at 11; Doc. 33-1 at 14-15.) Phase II comprises
the development and operation of the mine. (Doc. 33-2 at 11.)
Once in operation, the mine is expected to produce 10, 000
tons of ore per day for 26 to 30 years. (Id.) A
two-year period for shutdown and reclamation will follow.
(Id. at 12.) In all, the project will last 33.5 to
38 years and will disturb 445 acres, including 136 acres on
the Kootenai National Forest. (Id. at 11.)
Service authorization of the mine is required because it will
be located, in part, on National Forest land. (Doc. 33-1 at
8.) Further, because the mine may affect bull trout and
grizzly bear populations protected under the ESA, the Forest
Service must consult with the Fish and Wildlife Service
before approving the mine. (Id. at 67); 16 U.S.C.
§ 1536(a)(2). The result of the consultation is the Fish
and Wildlife Service's issuance of a "biological
opinion" as to whether the mine is likely to jeopardize
a protected species or adversely modify its critical habitat.
16 U.S.C. § 1536(b)(3); 50 C.F.R. § 402.14(g)(4).
If the Service issues a "no jeopardy" opinion but
determines the mine may incidentally "take"
individual members of a protected species, it must specify
the permitted level of take in an "incidental take
statement." 16 U.S.C. § 1536(b)(4); 50 C.F.R.
§ 402.14(i)(1); see also 16 U.S.C. §
1532(19) (defining "take").
the fourth round of litigation on the Rock Creek Mine.
(See Doc. 33-1 at 67 (summarizing litigation
history).) Most recently, in 2010, the Forest Service's
authorization was invalidated under the National
Environmental Policy Act and the Forest Service Organic
Administration Act. Rock Creek All. v. U.S. Forest
Serv., 703 F.Supp.2d 1152, 1170, 1181 (D. Mont. 2010).
2017, the Forest Service reinitiated consultation with the
Fish and Wildlife Service regarding the mine's effects on
bull trout, which resulted in a biological opinion
("2017 Bull Trout Biological Opinion") that the
mine was not likely to jeopardize bull trout and an
accompanying Incidental Take Statement. (Doc. 33-1 at 68;
see Doc. 33-2.) At the same time, the Fish and
Wildlife Service issued a supplement to its 2006 biological
opinion on grizzly bears ("2017 Grizzly Bear
Supplement"), concluding that reinitiating consultation
on grizzly bears was not required. (Doc. 36-1 at 3;
see Doc. 33-2.) In August 2018, the Forest Service
issued a record of decision approving Phase I of the mine
("2018 Record of Decision"). (See Doc.
filed this suit on January 25, 2019, seeking a declaration
that the 2017 Bull Trout Biological Opinion, 2017 Grizzly
Bear Supplement, and 2018 Record of Decision are invalid
under the ES A. (Doc. 1.) RC Resources, which owns the
mineral estate for the Rock Creek ore deposit, holds the
mine's principal permits, and will be the mine operator,
intervened as a matter of right on March 14, 2019. (Doc. 11.)
Federal Defendants and RC Resources filed the present motions
for judgment on the pleadings on July 19, 2019. (Docs. 32,
Rule of Civil Procedure 12(c) provides that "[a]fter the
pleadings are closed-but early enough not to delay trial-a
party may move for judgment on the pleadings."
"Dismissal under Rule 12(c) is warranted when, taking
the allegations in the complaint as true, the moving party is
entitled to judgment as a matter of law." Daewoo
Elec. Am. Inc. v. Opta Corp., 875 F.3d 1241, 1246 (9th
Cir. 2017). In ruling on 12(c) motions, courts are limited to
the material included in the pleadings. Yakima Valley
Mem 7 Hosp. v. Wash. St. Dep't of Health,
654 F.3d 919, 925 n.6 (9th Cir. 2011); Fed.R.Civ.P. 12(d).
However, courts may consider "documents incorporated
into the complaint by reference, and matters of which a court
may take judicial notice" without converting the motion
into one for summary judgment. Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). A
document "may be incorporated by reference into a
complaint if the plaintiff refers extensively to the document
or the document forms the basis of the plaintiffs
claim." United States v. Ritchie, 342 F.3d 903,
908 (9th Cir. 2003).
Failure to Reinitiate Formal Consultation (Claim I)
Defendants seek judgment on the pleadings for the Fish and
Wildlife Service on Claim I. Claim I alleges the Forest
Service and Fish and Wildlife Service violated the ESA by
failing to reinitiate formal consultation about the Rock
Creek Mine's effects on grizzly bears notwithstanding new
data about human-caused grizzly bear mortalities in the
mine's vicinity. ESA violations are reviewed under the
Administrative Procedure Act ("APA"), which governs
judicial review of agency action. 5 U.S.C. § 706;
Ariz. Cattle Growers' Ass 'n v. U.S. Fish &
Wildlife Serv., 273 F.3d 1229, 1235 (9th Cir. 2001). The
APA authorizes two types of challenges to agency decisions.
First, under § 706(1), a reviewing court can
"compel agency action unlawfully withheld or
unreasonably delayed." Second, under § 706(2), a
reviewing court can "hold unlawful and set aside agency
action" that is found to be, among other things,
"arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law."
Defendants construe Claim I as a "failure to act"
claim under § 706(1). But while the Complaint does not
specify which provision of the APA governs Claim I, it uses
language from § 706(2). Specifically, it alleges that
the 2017 Grizzly Bear Supplement is "arbitrary,
capricious, and violates the ESA and its implementing
regulations," (Doc. 1 at ¶ 98), and asks the Court
to "set aside" the 2017 Grizzly Bear Supplement,
(id. at ¶ 108). Claim I is thus a § 706(2)
claim that the Fish and Wildlife Service's decision not
to reinitiate consultation, as formalized in the 2017 Grizzly
Bear Supplement, is arbitrary and capricious. Federal
Defendants concede that a § 706(2) claim challenging the
2017 Grizzly Bear Supplement is ...