Alliance for the Wild Rockies v. Marten, Lead Case No. CV 19-92-M-DWM

• Decision Date: 03 June 2020
• Docket Number: Lead Case No. CV 19-92-M-DWM,Member Case No. CV 19-102-M-DWM
• Citation: 464 F.Supp.3d 1169
• Parties: ALLIANCE FOR THE WILD ROCKIES and Native Ecosystems Council, Plaintiffs/Consolidated Plaintiffs, v. Leanne MARTEN, et al., Defendants/Consolidated Defendants.
• Court: U.S. District Court — District of Montana

464 F.Supp.3d 1169

ALLIANCE FOR THE WILD ROCKIES and Native Ecosystems Council, Plaintiffs/Consolidated Plaintiffs,

v.Leanne MARTEN, et al., Defendants/Consolidated Defendants.

Lead Case No. CV 19-92-M-DWM

Member Case No. CV 19-102-M-DWM

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

Signed June 3, 2020

Kristine Marie Akland, Akland Law Firm, PLLC, Rebecca Kay Smith, Public Interest Defense Center, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, for Plaintiffs/Consolidated Plaintiffs.

Tyler M. Alexander, U.S. Department of Justice, Washington, DC, for Defendants/Consolidated Defendants.

ORDER and OPINION

Donald W. Molloy, District Judge

These consolidated cases concern the North Bridgers and Willow Creek Projects, two insect and disease treatment programs proposed under the 2014 amendments to the Healthy Forest Restoration Act ("HFRA"). Plaintiffs Alliance for the Wild Rockies and Native Ecosystems Council (collectively "Alliance") allege the projects violate the National Environmental Policy Act ("NEPA") and the Endangered Species Act ("ESA"). The parties’ cross-motions for summary judgment (Docs. 28, 31)¹ are suitable for decision on the briefs without a hearing. L.R. 78.1. For the following reasons, Alliance's motion is denied and Defendants’ motion is granted.

BACKGROUND

The Agricultural Act of 2014, colloquially called the Farm Bill, amended HFRA "to allow the United States Forest Service greater flexibility in managing the health of forest lands threatened by insect and disease infestation." Ctr. for Biological Diversity v. Ilano , 928 F.3d 774, 777 (9th Cir. 2019) ; Pub. L. No. 113-79, § 8204, 128 Stat. 649, 915–18 (codified at 16 U.S.C. §§ 6591a, 6591b ). Under the amendments, the Forest Service can designate "landscape-scale areas" that are threatened by insects or disease. § 6591a(b). Projects implemented on the designated areas to combat those threats are categorically excluded from NEPA provided they meet HFRA's statutory conditions. § 6591b.

The Forest Service designated 4,955,159 acres in Montana as threatened landscape under HFRA ("Threatened Landscape Designation"). WC 03656; NB 13844.² The North Bridgers and Willow Creek Projects are proposed insect and disease treatment programs on the Threatened Landscape Designation. WC 03656; NB 00004. The North Bridgers Project is in the Custer Gallatin National Forest, northeast of Bozeman. NB 00004. The Willow Creek Project is in the Helena-Lewis and Clark National Forest, southwest of Lincoln. WC 03656.

On June 3, 2019, Alliance filed suit challenging the North Bridgers Project, alleging that Defendants violated NEPA by failing to analyze the Project's cumulative effects (Claim 1), and by failing to analyze its effect on the adjacent roadless area (Claim 2), and violated the ESA by failing to analyze the effects of interrelated and interdependent HFRA projects on lynx (Claim 3). (Compl., Doc. 1; First Am. Compl., Doc. 20.) On June 14, 2019, Alliance filed suit challenging the Willow Creek Project. (Compl., Member Case Doc. 1.) Similar to its North Bridgers Project challenge, Alliance claims that Defendants violated NEPA by failing to analyze the Willow Creek Project's cumulative effects (Count 1), and violated the ESA by failing to analyze the effects of interrelated and interdependent HFRA projects on grizzly bear, lynx, and lynx habitat (Count 6). (Sec. Am. Compl., Member Case Doc. 23.) Alliance also challenges the Willow Creek Project's qualification for the categorical exclusion (Count 2) and the lynx and grizzly bear no jeopardy determinations for the 2018 Helena National Forest Plan Amendments and the Willow Creek Project (Counts 3, 5), and further claims that reinitiation of consultation for the 2016 Blackfoot Travel Plan is required (Count 4). (Id. ) The cases were consolidated on August 20, 2019. (Doc. 11.) The parties subsequently filed cross motions for summary judgment. (Docs. 28, 31.)

LEGAL STANDARD

NEPA and ESA claims are reviewed under the Administrative Procedure Act ("APA"), which authorizes courts 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). Because HFRA includes no private right of action, agency actions under HFRA are also reviewed under the APA. See Native Ecosys. Council v. U.S. Forest Serv. , 428 F.3d 1233, 1238 (9th Cir. 2005). An action is "arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is particularly applicable to judicial review of final agency action, where the issue is "whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." City & Cty. of S.F. v. United States , 130 F.3d 873, 877 (9th Cir. 1997) (internal quotation marks omitted).

ANALYSIS

I. Threatened Landscape Designation

This Court previously determined that the Threatened Landscape Designation was not a final agency action subject to NEPA review. Native Ecosys. Council v. Erickson , 330 F. Supp. 3d 1218, 1234–35 (D. Mont. 2018) ; Native Ecosys. Council v. Marten , No. 17-153-M-DWM, 2018 WL 6046472, at *4 (D. Mont. Nov. 19, 2019) aff'd , 807 F. App'x 658 (9th Cir. Apr. 7, 2020). Alliance now argues that the Designation is nonetheless subject to the ESA. (Doc. 29 at 9–11.) This claim was not pled, (see Doc. 20; Member Case Doc. 23), and therefore is not considered, Stallcop v. Kaiser Found. Hosps. , 820 F.2d 1044, 1050 n.5 (9th Cir. 1987) (refusing to consider claim raised for the first time in summary judgment briefing).

II. Interrelated or interdependent actions

Section 7 of the ESA directs federal agencies to consult with the Fish and Wildlife Service or National Marine Fisheries Service to ensure that their actions are "not likely to jeopardize the continued existence of any endangered species or threatened species" or cause the "destruction or adverse modification" of critical habitat. 16 U.S.C. § 1536(a)(2) ; 50 C.F.R. § 402.01(b). Before consulting, agencies prepare biological assessments to evaluate an action's effects on protected species and habitat. 50 C.F.R. § 402.02. When the North Bridgers and Willow Creek Projects were approved, an action's "effects" included "the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline." 50 C.F.R. § 402.02 (2016).³ In its biological assessments, the Forest Service concluded that the North Bridgers Project was not likely to adversely affect Canada lynx, NB 07852, and that the Willow Creek Project was not likely to adversely affect Canada lynx or its critical habitat but was likely to adversely affect grizzly bear, WC 03785, 03790, 03800.⁴ Alliance challenges those determinations, arguing that the Projects are "interrelated or interdependent" actions that should have been analyzed together.

Defendants contend that Alliance failed to raise this claim in its 60-day notices of its intent to sue. Plaintiffs must provide written notice to the agency at least 60 days before filing an ESA claim in federal court. 16 U.S.C. § 1540(g)(2). The notice must provide enough information for the agency to identify and attempt to address the claim, but it need not "list every specific aspect or detail of every alleged violation." Klamath-Siskiyou Wildlands Ctr. v. MacWhorter , 797 F.3d 645, 651 (9th Cir. 2015). (internal quotation marks omitted). The requirement is jurisdictional. Id. at 647.

Alliance's notice on the North Bridgers Project satisfied this standard by explicitly raising the failure to analyze other HFRA projects’ effects on lynx:

[T]he Biological Assessment fails to address the effects of interrelated actions on lynx including the direct and indirect effects of the North Bridger[s] Project with the effect of other projects that have been categorically excluded from NEPA through the use of the Healthy Forest Restoration Act or other categorical exclusions.

NB 13402. However, Alliance's notice on the Willow Creek Project is insufficient. It states that the biological assessment "fails to adequately address cumulative effects" of the Project on lynx, lynx habitat, and grizzly bear, but does not reference other projects or use the terms interrelated or independent. WC 31211–12. "Cumulative effects" are defined as "those effects of future State or private activities, not involving Federal activities , that are reasonably certain to occur within the action area of the Federal action subject to consultation." 50 C.F.R. § 402.02 (emphasis added). This definition does not encompass other HFRA projects. Further, cumulative effects are distinct from interrelated or independent actions. Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt. , 698 F.3d 1101, 1113 (9th Cir. 2012). The notice, then, does not merely lack specific details but completely omits the crux of Alliance's challenge.

Accordingly, Alliance's claim that the Willow Creek biological assessment failed to analyze interdependent or interrelated actions, as pled in Count 6 of the Member Case, is dismissed. (Member Case Doc. 23...