Salix v. U.S. Forest Serv.

• Decision Date: 16 May 2013
• Docket Number: No. CV 12–45–M–DLC.,CV 12–45–M–DLC.
• Citation: 944 F.Supp.2d 984
• Parties: Nolan SALIX; Cottonwood Environmental Law Center, Plaintiffs, v. UNITED STATES FOREST SERVICE; Faye Krueger, in her official capacity as Regional Forester for the U.S. Forest Service, Region One, Defendants.
• Court: U.S. District Court — District of Montana

944 F.Supp.2d 984

Nolan SALIX; Cottonwood Environmental Law Center, Plaintiffs,

v.UNITED STATES FOREST SERVICE; Faye Krueger, in her official capacity as Regional Forester for the U.S. Forest Service, Region One, Defendants.

No. CV 12–45–M–DLC.

United States District Court,

D. Montana,

Missoula Division.

May 16, 2013.

John Meyer, Andrew S. Gorder, Bozeman, MT, for Plaintiffs.

John H. Martin, U.S. Department of Justice, Denver, CO, Mark Steger Smith, Office of the U.S. Attorney, Billings, MT, for Defendants.

ORDER

DANA L. CHRISTENSEN, District Judge.

Before the Court are the parties' cross-motions for summary judgment. For the reasons discussed below, Plaintiffs' motion is granted and Defendants' motion is denied. As threshold matters, Plaintiffs have standing to challenge the Forest Service's failure to reinitiate section 7 consultation on the programmatic plan amendment at issue here, and the Court has jurisdiction to consider the case because Plaintiffs' notice of intent to sue was adequate. The Court also finds that the Ninth Circuit's decision in Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir.1994), cert. denied514 U.S. 1082, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995) (“Pacific Rivers (1994) ”), remains good law in this Circuit and that the programmatic plan amendment is thus subject to the Endangered Species Act's requirements that section 7 consultation be reinitiated in certain circumstances. The designation of critical habitat on forest service lands subject to the plan amendment constituted such a triggering event, and the Forest Service violated the Endangered Species Act by failing to reinitiate consultation. While the Forest Service must now reinitiate consultation, the Court will not enjoin any specific projects or grant the broad injunctive relief requested by Plaintiffs because Plaintiffs have not made an adequate showing of irreparable harm to support the scope of the injunctive relief requested.

Facts

In 2000, the Distinct Population Segment of Canada lynx in the contiguous United States was added to the list of threatened species under the Endangered Species Act (“ESA”). In response, the United States Forest Service (“Forest Service”) developed the Northern Rockies Lynx Amendment (the “Lynx Amendment” or “Amendment”), a “programmatic plan amendment[ ]” to the land and resource management plans (“forest plans”) of 18 National Forests in the Northern Rocky Mountains analysis area. The Lynx Amendment is “programmatic in nature, consisting of direction that would be applied to future management activities.” AR 2372 at 4; AR 0101(a)at 4; AR 2535 at 8639.

In 2005, the Forest Service initiated formal consultation with the Fish and Wildlife Service (“Wildlife Service”) on the Amendment, pursuant to Section 7 of the ESA. At that time, the Wildlife Service had not yet designated any critical habitat for lynx on Forest Service lands.¹ Thus, the consultationdid not include any consideration of whether the Lynx Amendment would affect lynx critical habitat.

Section 7 consultation was completed in 2007 when the Wildlife Service issued a Biological Opinion concluding that the Lynx Amendment would not jeopardize the continued existence of the Canada lynx. In a single Record of Decision, the Forest Service then incorporated the Lynx Amendment into the land and resource management plans for 18 national forests.

On February 25, 2009, the Wildlife Service extended critical habitat protections to additional lands in Idaho, Montana, and Wyoming that were already occupied by lynx, including areas within 11 national forests that were impacted by the Lynx Amendment.

Plaintiffs allege that the Forest Service should have reinitiated Section 7 consultation on the Lynx Amendment when lynx critical habitat was designated on Forest Service land. The claim arises under the citizen suit provision of the ESA, 16 U.S.C. § 1540(g)(1)(A).

Analysis

I. Standing

In order to satisfy the case or controversy requirement of Article III, a plaintiff must establish standing to bring a claim. Summers v. Earth Island Inst., 555 U.S. 488, 491, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). An organizational plaintiff has standing to sue if its members would have standing to sue in their own right, the “interests at stake are germane to the organization's purposes,” and the members' participation is not necessary to the claim or the relief requested. Friends of the Earth, Inc. v. Laidlaw Envtl. Srvcs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

Three elements are essential to member standing: injury in fact, causation, and redressability. An “injury in fact” must be (a) “concrete and particularized” and (b) “actual or imminent, not conjectural or hypothetical.” Summers, 555 U.S. at 493, 129 S.Ct. 1142 (citation omitted). An organization must show, through specific facts, Fed.R.Civ.P. 56(e), that at least one member has concrete and personal interests in a specific area of the environment that is affected by the challenged government action and that the member's interests have been and will be directly harmed by the government action. Summers, 555 U.S. at 494–98, 129 S.Ct. 1142. Additionally, the injury must be “fairly traceable to the challenged action” and likely to be redressed by a favorable decision. Id. “A showing of procedural injury lessens a plaintiff's burden on the last two prongs of the Article III standing inquiry, causation and redressability.” Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir.2008) (citation omitted). “Plaintiffs alleging procedural injury must show only that they have a procedural right that, if exercised, could protect their concrete interests.” Id. (citation omitted) (emphasis in original).

In the case at hand, Plaintiffs challenge the Forest Service's failure to reinitiate consultation on the Lynx Amendment, which was accomplished through one Record of Decision, but amended 20 separate plans covering 18 national forest units. Plaintiffs have named several specific, affected subareas of the national forests affected by the Lynx Amendment that they use and enjoy. See W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 484 (9th Cir.2011) (citing Idaho Conserv. League v. Mumma, 956 F.2d 1508, 1517 (9th Cir.1992)). In several of these areas, the Forest Service has designated critical habitat for lynx. In a few of these areas, Plaintiffs have alleged that their interests face imminent threat because the Forest Service has approved projects without conducting the landscape-level analysis that would take place if the Forest Service reinitiated consultation on the Lynx Amendment. They allege the failure to reinitiate consultation on the Lynx Amendment threatens lynx habitat in these areas and will impair their opportunity to see lynx in the wild.

Defendants claim that Plaintiffs must establish standing to challenge each individual forest plan, that they must also challenge specific projects that rely on the plan, and that they must show that the site-specific analysis for particular projects did not compensate for any injury that might have been caused by the failure to reinitiate consultation on the Lynx Amendment. Defendants argue that Plaintiffs have failed to allege an injury in fact that is traceable to the amendment of the plans for 17 of the 18 forests and that Plaintiffs' allegations of injury in the Gallatin National Forest are negated by the Wildlife Service's determination in site-specific biological opinions that the projects in question would not adversely modify lynx critical habitat. Plaintiffs counter that they have established standing to challenge the single, programmatic Lynx Amendment. It is sufficient, they insist, that they show a single imminent injury to their interests in one specific area in one national forest that is affected by the Amendment.

For the reasons discussed below, Plaintiffs' arguments are more compelling.

A.

Defendants suggest that Summers requires plaintiffs who are challenging a programmatic regulation to also assert (and succeed on) a site-specific, “as-applied” claim challenging a specific project. ( See doc. 32 at 9–12). However, for the purpose of establishing standing to challenge a programmatic regulation, plaintiffs can allege injury from a project that relies on that regulation without asserting a separate claim against the project.

In Summers, the plaintiffs challenged various timber regulations and also challenged the failure of the Forest Service to apply one of the regulations to a particular project, the Burnt Ridge Project. 555 U.S. at 494, 129 S.Ct. 1142. They settled the dispute over the Burnt Ridge project before the challenge to the regulations was decided. Id. The Supreme Court held that the plaintiffs lacked standing to challenge the regulations since their dispute over the Burnt Ridge project had been resolved. Id. But this was not because the separate claim was no longer part of the action. Rather, the only injury the plaintiffs had alleged in their standing affidavits was associated with the Burnt Ridge project. Id. at 495, 129 S.Ct. 1142. They had not alleged a particularized injury in any other area. The Court held: “We know of no precedent for the proposition that when a plaintiff has sued to challenge the lawfulness of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for that action (here, the regulation in the abstract), apart from any concrete application that threatens imminent harm to his interests.” Id. at 494, 129 S.Ct. 1142 (emphasis added). It was the lack of a concrete application that threatened imminent harm to the plaintiffs' interests, not the lack of an independent, project-specific claim, that ultimately impaired the plaintiffs' standing to challenge the regulations.

The Ninth Circuit's decisions in Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir.2011), and Pacific Rivers Council v. United States...