All. for Wild Rockies v. Marten
| Decision Date | 13 December 2021 |
| Docket Number | CV 20-179-M-DWM |
| Parties | ALLIANCE FOR THE WILD ROCKIES, et al., Plaintiffs, v. LEANNE MARTEN, et al., Defendants. |
| Court | U.S. District Court — District of Montana |
This case challenges decisions by the United States Fish and Wildlife Service and the United States Forest Service (collectively “Defendants”) in the Helena-Lewis and Clark National Forest regarding the Stonewall Vegetation Project (the “Project”) and Forest Plan Amendment #35. (Doc. 1.) The crux of the dispute is the Forest Service's alleged systematic use of site-specific Forest Plan amendments to avoid compliance with Forest Plan standards regarding elk. Ultimately, even if the issuance of these amendments has not negatively impacted elk populations consistent abrogation of Forest Plan elk cover standards amounts to a “significant” change to that Plan requiring additional environmental review.
Plaintiffs are environmental organizations that claim Defendants violated the Endangered Species Act (“ESA”) by failing to reinitiate consultation for the Project for the grizzly bear (Claim I)[1] and that the Forest Service violated the National Environmental Policy Act (“NEPA”) and the National Forest Management Act (“NFMA”) in the Project's analysis of elk (Claim IV) and use of site-specific Forest Plan amendments to avoid complying with Forest Plan standards (Claim V). Plaintiffs further seek to supplement the administrative record with evidence of other projects where the Forest Service has used similar site-specific Plan amendments. (Doc 10.) For the reasons provided below, Plaintiffs prevail on a number of their claims.
The Stonewall Project is located in the Lincoln Ranger District of the Helena National Forest, approximately four miles northwest of the town of Lincoln, Montana. FS_096608.[2] The Project area covers approximately 24, 010 acres (approximately 23, 760 of which are National Forest System lands) within Powell and Lewis and Clark Counties. FS096608. The Project authorizes management activities on 1, 381 acres, including commercial logging on 706 acres, precommercial thinning on 406 acres, prescribed burning on 269 acres, 0.9 miles of temporary road building, and road maintenance or reconstruction on 25 miles of roads. FS_096606-07, 108441. All logging activity is anticipated to be completed within 5 years, with some Project activities lasting up to 10 years. FS083018, 108441. New roads will not be open to the public, FS084592, and open-road density will return to pre-Project levels after implementation, FS085296.
The Forest Service initially issued a Record of Decision authorizing the Stonewall Project and Forest Plan Amendment #31 on August 25, 2016. FS_085265-473. On February 17, 2017, Plaintiffs filed a lawsuit challenging the Project, and it was preliminarily enjoined on May 30, 2017. See All. for Wild Rockies v. Marten (“Marten I”), 253 F.Supp.3d 1108, 1110, 1115 (D. Mont. 2017). In July 2017, a wildfire-the Park Creek Fire-started in the Project area and grew to roughly 18, 000 acres. FS_096606. The fire burned across approximately 56 percent of the Project area. FS108437, 108441. The litigation was subsequently stayed. See All. for Wild Rockies v. Marten (“Marten II”), 2018 WL 2943251, at *1 (D. Mont. June 12, 2018). On January 19, 2018, the Forest Service requested a voluntary remand without vacatur in order to conduct supplemental environmental analysis. Id. That request was granted in part and denied in part; the 2016 decision authorizing the Project and Forest Plan Amendment #31 was vacated and the matter remanded to the agency. Id. at *4.
In August 2019, the Forest Service produced a final Supplemental Environmental Impact Statement (“Supplemental EIS”) for the Project and Forest Plan Amendment. FS_096935-7098. On December 19, 2019, the Forest Service issued a Record of Decision (the “2019 ROD”) authorizing a modified “Alternative 4” for the Project, which reflected the changed conditions in light of the fire. FS096601-30; see also FS96938-44 (outlining changes). As part of Alternative 4, the Forest Service proposed a site-specific, one-time amendment-Amendment #35-exempting the Project from Forest Plan Big Game Standards 3 (elk hiding and thermal cover) and 4a (elk hiding cover/open road densities). FS_096608, 096617, 097004-09, 096647. On December 11, 2020, Plaintiffs filed the present action. (Doc. 1.) Argument was heard on December 7, 2021.
Actions under the ESA, NEPA, and NFMA are evaluated under the standards set forth in the Administrative Procedure Act (“APA”), which authorizes a court 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” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D); see Native Ecosystems Council v. Marten, 883 F.3d 783, 788 (9th Cir. 2018). 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 appropriate. City & Cnty. of S.F. v. United States, 130 F.3d 873, 877 (9th Cir. 1997).
Here Plaintiffs seek to supplement the administrative record and argue that Defendants violated their NEPA and NFMA obligations regarding elk habitat and they violated the ESA as it relates to grizzly bears. In response, Defendants argue the present record is sufficient, Plaintiffs failed to administratively exhaust certain claims, and the agencies met their obligations. Ultimately, Plaintiffs prevail on their elk claims insofar as the Forest Service failed to adequately consider Forest Plan Standard 6 and issued a site-specific plan amendment in violation of both NFMA and NEPA. Plaintiffs also prevail on their ESA claim to the extent approval of the Project will result in activities in more than three adjacent grizzly bear subunits. Remand is therefore necessary.
Plaintiffs first seek to supplement the administrative record with, or ask the Court to take judicial notice of, documents that relate to other projects to support their claim that the Forest Service is systematically exempting projects from Forest Plan Standards 3 and 4a in violation of NEPA and NFMA. (Doc. 10; see Doc. 1 at ¶¶ 209-15.) The following documents are at issue:
Ex. Description Project Document Date 1 Project area map (2 pages) Hogum July 9, 2020 2 Project fact sheet (3 pages) Hogum January 2020 3 Project detailed information (13 pages) Middleman[3] January 2020 4 Draft Decision Notice and FONSI (77 pages) Middleman January 22, 2020 5 Environmental Assessment (528 pages) Middleman January 2021 6 Project information (21 pages) Boulder Baldy November 2020 7 FWP comment letter (8 pages) Middleman September 2020
(Doc 11 at 9; Doc. 13 at 3.) Plaintiffs' motion is granted in part and denied in part.
Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (internal quotation marks omitted). Here, Plaintiffs argue supplementation is appropriate under (1), (3), and (4). In response, Defendants argue that supplementation is not appropriate because all seven documents post-date the 2019 ROD for the Stonewall Project and, even if they did not, do not meet the requirements of a record exception. For the reasons below, Plaintiffs are permitted to supplement the record with Exhibits 3 and 7, as well as three exhibits attached to their response brief, (see Doc. 22-1).
“[E]xceptions to the normal rule regarding consideration of extra-record materials only apply to information available at the time, not post-decisional information.” Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. Zinke, 889 F.3d 584, 600 (9th Cir. 2018) (internal quotation marks omitted). Because the documents at issue here all post-date the 2019 ROD, Defendants insist they cannot be used to supplement the record. Plaintiffs, however, argue that while the documents themselves post-date the 2019 ROD, they contain “pre-decision information.” (Doc. 17 at 8.) Specifically, “Plaintiffs seek to establish that at the time of the decision in this case, there was sufficient information before the Forest Service to indicate the possibility of three reasonably foreseeable Forest Plan amendments.” (Id.) Plaintiffs' distinction between “documents” and “information” has merit.
As argued by Plaintiffs, Cachil itself recognized the difference between post-decisional documents and post-decisional information. In Cachil, the plaintiffs relied...
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