Alliance For The Wild Rockies v. Bradford

• Decision Date: 29 June 2010
• Docket Number: No. CV 09-160-M-DWM.,CV 09-160-M-DWM.
• Citation: 720 F.Supp.2d 1193
• Court: U.S. District Court — District of Montana
• Parties: ALLIANCE FOR THE WILD ROCKIES, Plaintiff, v. Paul BRADFORD, Supervisor of the Kootenai National Forest, Jane Cottrell, Acting Regional Forester of Region One of the U.S. Forest Service, United States Forest Service, an agency of the U.S. Department of Agriculture, and United States Fish & Wildlife Service, an agency of the U.S. Department of Interior, Defendants.

720 F.Supp.2d 1193

ALLIANCE FOR THE WILD ROCKIES, Plaintiff,

v.Paul BRADFORD, Supervisor of the Kootenai National Forest, Jane Cottrell, Acting Regional Forester of Region One of the U.S. Forest Service, United States Forest Service, an agency of the U.S. Department of Agriculture, and United States Fish & Wildlife Service, an agency of the U.S. Department of Interior, Defendants.

No. CV 09-160-M-DWM.

United States District Court,D. Montana, Missoula Division.

June 29, 2010.

COPYRIGHT MATERIAL OMITTED.

Rebecca Kay Smith, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, for Plaintiff.

Andrew A. Smith, U.S. Department of Justice, U.S. Attorneys Office, Albuquerque, NM, John P. Tustin, U.S. Department of Justice, Washington, DC, Mark Steger Smith, Office of the U.S. Attorney, Billings, MT, for Defendants.

OPINION

DONALD W. MOLLOY, District Judge.

I. Introduction

Alliance for the Wild Rockies is seeking judicial review under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, of agency actions by the U.S. Forest Service and the U.S. Fish & Wildlife Service concerning the Grizzly Vegetation and Transportation Management Project (“Grizzly Project”), the Miller West Fisher Project (“Miller Project”), and the Little Beaver Hazardous Fuels Reduction Project (“Little Beaver Project”). The Complaint claims the agencies acted in violation of the Endangered Species Act (“ESA”), 16 U.S.C. § 1533 et seq., the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq., and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. Pending now are the parties' cross-motions for summary judgment. For the reasons set forth below the motions are granted in part and denied in part.

II. Factual Background

A. The Cabinet-Yaak grizzly bear population

The grizzly was listed as a threatened species under the ESA in 1975. 40 Fed.Reg. 31736. The Fish & Wildlife Service approved a Grizzly Bear Recovery Plan in 1982 and then revised the Plan in 1993. AR 1-31-077. ¹ The revised recovery plan establishes four recovery zones, including the Cabinet-Yaak Ecosystem in northwest Montana and northeast Idaho, which is partly on the Kootenai National Forest. Id. at 90. Roughly 90% of the Cabinet-Yaak Ecosystem is federally owned. 64 Fed.Reg. 26725, 26728 (May 17, 1999). That recovery zone is divided into bear management units (“BMUs”), each of which approximates the size of a female grizzly's home range and includes representations of all available habitat components. Cabinet Resource Group v. U.S. Fish & Wildlife Serv., 465 F.Supp.2d 1067, 1072 (D.Mont.2006). The BMU's are then divided into subunits called bear analysis areas. AR 1-31-041:6.

The recovery goal for the Cabinet-Yaak grizzly bear population is 100 bears. AR 1-31-077:91. The 1993 Recovery Plan estimated the population size at 15-20 bears in the recovery zone. AR 1-31-077:92. By 2002, the Forest Service noted that the bear population had expanded outside the recovery zone. AR 2-3-104:3. By 2007, the estimated population of grizzly bears in the Cabinet-Yaak Ecosystem was 45 bears. AR 1-31-034.2:2. While the population has increased over the past 15-20 years, a different picture has appeared recently. The most recent grizzly population trend analysis shows an 87.8% to 90.6% probability that the population is in decline. Id. at 66. The Cabinet-Yaak grizzly bear population is not meeting recovery targets set forth in the 1993 Recovery Plan. For example, the Recovery Plan's target for a six year average of females with cubs is 6, but the 2007 Monitoring Report found that the average was only 2.2, and the distribution of females with young is only 14 of 22, rather than the recovery target 18 of 22. AR 1-31-034.2:18. Additionally, human caused mortality and human-caused mortality of females exceeded the Recovery Plan targets in the 2007 monitoring report. Id. The majority of human caused mortalities in the Cabinet-Yaak grizzly bear population do not occur on Forest Service Lands, but on other surrounding lands. Id. at 73. Outside the recovery zone, the Forest Service does not analyze bears using BMUs, but has categorized the areas used by bears as the “grizzly bear outside the recovery zone reoccurring use polygon” (“reoccurring use polygon”). AR 2-1-713:10.

The 1993 Recovery Plan established that “the most crucial element in grizzly recovery is securing adequate effective habitat for bear populations.” AR 1-31-077:34. The plan also concluded that roads pose the “most imminent threat” to grizzly bear habitat. Id.

The troubling mortality trends with the grizzly precipitated the Fish & Wildlife Service determination that the Cabinet-Yaak grizzly population was so low it warranted reclassification from threatened to endangered in 1993. The Agency reaffirmed its finding in 1999. 64 Fed.Reg. 26725, 26733. The agency has not acted on this critical determination, contending the reclassification is precluded by work on higher priority species. Id.

B. Procedural background of grizzly management in the Cabinet-Yaak Ecosystem

The 1987 Kootenai Forest Plan adopted forest-wide standards relating to management of the grizzly bear. The Forest Plan requires that on “Management Situation 1 lands, ² “Management decisions will favor the needs of the grizzly bear when grizzly habitat and other land use values compete. Land uses which can affect grizzlies and/or their habitats will be made compatible with grizzly needs or such uses will be disallowed of eliminated.” AR 1-19-004:293. On Management Situation 2 lands, where grizzles may occasionally be present, “[t]he grizzly bear is an important, but not the primary, use on the area.” Id. Management Situation 3 lands are those where grizzly bear presence is possible but infrequent and grizzly “habitat maintenance and improvement are not management considerations.” The Forest Plan also set standards for, among other factors, average open road densities, which must be limited to .75 miles/square mile on Management Situation 1 and 2 lands. Id. at 301.

The 1994 Interagency Grizzly Bear Taskforce authored a Report with goals and recommendations for parameters relating to the effects of motorized access on bears. AR 2-3-096. That Report urged analysis of total motorized route density, open motorized route density, and percentage of core area. Id. at 6. The first factor, total motorized route density, includes all motorized roads or trails, including those closed to the public. The second factor, open motorized route density, includes motorized roads and trails open to the public. Id. at 3. As to the third factor, the Report recommended analysis of the percentage of an analysis area that meets core area criteria, and it argued for establishing minimum sizes for core areas. Id. at 6.

The Service determined that the 1987 Kootenai Forest Plan could cause “take” of the grizzly bears, a “take” which is prohibited under section 9 of the ESA. AR 1-31-041:8. Consequently, in 1995, the Fish and Wildlife Service published a Biological Opinion and Incidental Take Statement for the 1987 Kootenai Forest Plan (“1995 Incidental Take Statement”). AR 1-31-041. The 1995 Incidental Take Statement reaffirmed the finding in the Recovery Plan that roads and road density “are among the most serious adverse impacts on the security of grizzly bear habitat and have negatively influenced grizzly bear population and habitat use patterns in numerous, widespread areas.” Id. at 3. The Take opinion then reviewed the recommendations in the Report by the 1994 Interagency Grizzly Bear Taskforce. Id. In doing so the Incidental Take Statement found that road density standards in the Forest Plan were exceeded in many BMU subunits, the bear analysis areas, and that the Forest Plan did not provide management guidance for total road density and core habitat within BMUs, factors that are necessary for adequate bear habitat security. Id. at 6. The Service then concluded there would be no jeopardy to the Cabinet-Yaak grizzly bear population and authorized incidental take of grizzly bears, provided the Forest Service adopted reasonable and prudent measures set forth in the Take Statement. Id. at 9. These measures required the Forest Service to construct access management standards to regulate open road, open motorized trail route density, and total motorized access route density, and to maintain and improve core habitat areas. Id. at 9-10. The 1995 Incidental Take Statement promulgated interim standards that would govern until the Forest Service adopted the required measures. The interim standards included a requirement that the Forest Service must comply with the Forest Plan. That meant the Forest Service would exceed the authorized level of incidental take if a proposed project “increases the density of open roads above the current Forest Plan Standard, increases the density of open motorized trails, increases the net total motorized access route density, or decreases the existing amount of core area in the affected BMU's.” Id. at 11.

The Selkirk/Cabinet-Yaak Subcommittee of the Interagency Grizzly Bear Committee issued the 1998 Interim Access Management Rule Set (“1998 Rule Set”) to govern motorized access in the Selkirk and Cabinet-Yaak Ecosystems. AR 1-31-024. The interim 1998 Rule Set was limited in effect for a period of three years or until the applicable Forest Plans were revised. Id. at 1. It directed federal agencies to strive to provide a minimum of 70 percent habitat security (or habitat effectiveness) in each BMU, and to work to achieve 55 percent core habitat in Priority 1 BMUs, with “[n]o net loss” of core habitat in Priority 1, 2, and 3 BMUs. Id. at 2. The 1998 Rule Set also established a goal of “no net increase” in open motorized route density or total motorized route density on national forest lands within the recovery areas. Id. at 3. The Forest Service did not prepare a NEPA environmental analysis or undertake ESA consultation...