Cabinet Resource Group v. U.S. Fish and Wildlife, No. CV 04-236-M-DWM.

• Decision Date: 13 December 2006
• Docket Number: No. CV 04-236-M-DWM.
• Citation: 465 F.Supp.2d 1067
• Parties: CABINET RESOURCE GROUP, Great Bear Foundation, Idaho Conservation League, Natural Resources Defense Council, and Selkirk Conservation Alliance, Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE and United States Forest Service, Defendants.
• Court: U.S. District Court — District of Montana

465 F.Supp.2d 1067

CABINET RESOURCE GROUP, Great Bear Foundation, Idaho Conservation League, Natural Resources Defense Council, and Selkirk Conservation Alliance, Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE and United States Forest Service, Defendants.

No. CV 04-236-M-DWM.

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

December 13, 2006.

COPYRIGHT MATERIAL OMITTED

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Douglas Honnold, Timothy Preso, Abigail Dillen (Bozeman, MT), for the Plaintiffs.

Andrew Smith, U.S. Dept. of Justice (Albuquerque, NM), for the Defendants.

ORDER

I. Introduction

Cabinet Resource Group, et al., ("Plaintiffs") bring this action seeking judicial review under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, of agency actions by the United States Forest Service and the United States Fish & Wildlife Service concerning road management decisions in the Cabinet-Yaak and Selkirk Grizzly Bear Ecosystems in northwest Montana, northern Idaho and northeast Washington. The First Amended Complaint alleges that the agencies acted in violation of the Endangered Species Act ("ESA"), 16 U.S.C. § 1533 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.

There are cross-motions for summary judgment on all claims. Some of the issues raised here were addressed in this Court's recent ruling in Alliance for the Wild Rockies v. U.S. Fish & Wildlife Service and U.S. Forest Service, CV 04-216-M-DWM, issued August 29, 2006. In the Alliance opinion, the Court granted summary judgment in favor of the Federal Defendants on all claims. The part of that opinion that is relevant to this case is the Court's consideration the ESA and NEPA claims. The claims were pled in Counts I, V, and VII of the Alliance Complaint. These Alliance claims generally cover the same ecosystems, planning documents and issues raised here but the Plaintiffs in this case raise arguments that were not advanced by the Alliance plaintiffs. The Cabinet Resource Plaintiffs also try to identify factual errors in the Alliance opinion and ask the Court to revisit certain factual findings made in the opinion.

In light of the Alliance ruling, I ordered the parties to re-submit their summary judgment briefing, tailoring their arguments to the new post-Alliance legal landscape. Not surprisingly, the Federal Defendants contend that the reasoning employed in Alliance disposes of the claims in this case while the Plaintiffs urge the Court to set aside the documents it upheld against similar challenges in Alliance on the basis of arguments not raised in the Alliance briefing.

Despite the overlap between the claims in Alliance and the claims at issue here, I have given fresh consideration to all issues and arguments presented in this case. Nonetheless, to provide context, and in order to highlight both points of commonality and distinctions between the two cases, the relevant excerpt of the Alliance analysis is reproduced at the outset of each section of the discussion of the claims in this opinion.

II. Factual Background

A. Grizzly Bear Management in the Cabinet-Yaak and Selkirk Ecosystems

The grizzly bear was listed as a threatened species under the ESA in 1975. 40 Fed.Reg. 31736. Pursuant to the ESA, the Fish & Wildlife Service approved a Grizzly Bear Recovery Plan in 1982 and revised the Plan in 1993. FWS AR 398 at 4468.¹ The Recovery Plan as revised establishes four recovery zones, including the Cabinet-Yaak Ecosystem and Selkirk Ecosystem Zones. Id. at 4825.² The Selkirk and Cabinet-Yaak Zones are located in northwestern Montana, northern Idaho, northeastern Washington, and British Columbia, Canada, and contain 4,560 square miles of habitat on portions of the Kootenai, Lolo, Idaho Panhandle, and Colville National Forests and the Kootenay Lakes Forest District in British Columbia. FS AR 19-9 at S-1.³ The Cabinet-Yaak and Selkirk Ecosystems are divided into bear management units, each of which approximates the size of a female grizzly's home range and should include representations of all available habitat components. Id. at 2-3.

1. The Selkirk Ecosystem Recovery Zone

The Selkirk Ecosystem Recovery Zone is located in northeastern Washington, northern Idaho and southern British Columbia. FWS AR 1 at 32. Only fiftythree percent of the land comprising the Selkirk Ecosystem is located in the United States. Id. Of that amount, eighty (80) percent is federally owned, meaning fortytwo (42) percent of the Selkirk Recovery Zone is subject to the management decisions at issue here. Id. These federal lands are administered by the Colville and Idaho Panhandle National Forests and contain ten bear management units. Id. at 32-33. One of the units is located almost entirely in the Colville National Forest and is administered by that Forest. Two units straddle the Colville and Idaho Panhandle Forests and are administered jointly. Six units are located solely in the Idaho Panhandle National Forest and one unit is located on Idaho state land and is not subject to federal control. Id.

The Selkirk population is estimated at forty-six (46) bears, well below the Recovery Plan's goal of ninety (90) bears. FWS AR 1 at 33, 35. In 1999, the Fish & Wildlife Service determined that the status of the grizzly in the Selkirk warrants reclassification of the bear from threatened to endangered. Id. at 32. The agency has yet to take action on this determination, however, claiming the reclassification is "precluded by work on higher priority species." Id. The Fish & Wildlife Service believes the Selkirk population is slightly increasing, but concedes that recent population trend analysis is inconclusive. Id. at 12, 36. Population modeling in 1999 indicated that "one additional subadult female mortality in the sampled [Selkirk Recovery Zone] population could push the trend into a decline." Id. at 12.

There were six grizzly bear mortalities in the Selkirk in 2002, one of which was an adult female. Id. The small size of the Selkirk population has led the Fish & Wildlife Service to establish a mortality goal of zero known human-caused grizzly bear deaths. Id. at 34. Despite acknowledging that the Selkirk Recovery Zone is meeting none of its Recovery Plan goals relative to reproduction, distribution and mortality and that there is a clear need to improve protection of grizzlies and their habitat in the Selkirk Ecosystem, the Fish & Wildlife Service speculates, based on the perceptions of researchers familiar with the Selkirk, that the Selkirk population has experienced modest growth in recent years. Id. at 46.

2. The Cabinet-Yaak Ecosystem Recovery Zone

The Cabinet-Yaak Recovery Zone is located in northwest Montana and northeast Idaho and spans the Idaho Panhandle, Kootenai and Lolo National Forests. FWS AR 1 at 47. Land ownership within the Cabinet-Yaak Recovery Zone is ninety (90) percent Federal, with the remaining ten percent divided between state and private ownership. Id. This zone is made up of two distinct portions, the Yaak portion in the south and the Cabinet Mountains portion in the north, which are connected by two narrow corridors of habitat. Id. The Cabinet-Yaak consists of twenty-two (22) bear management units. Fifteen (15) are managed by the Kootenai National Forest, four (4) are managed by the Idaho Panhandle National Forest, one (1) is managed by the Lolo National Forest, and two (2) are jointly administered by the Kootenai and Idaho Panhandle Forests. Id.

The Cabinet-Yaak population is smaller than the Selkirk population, estimated at thirty (30) to forty (40) bears. FWS AR 1 at 11. The Recovery Plan goal for the Cabinet-Yaak is one hundred (100) bears. Id. at 47. The Cabinet-Yaak Recovery Zone also fails to meet Recovery Plan criteria for reproduction, distribution and mortality. Id. at 12. The Fish & Wildlife Service determined that the Cabinet-Yaak grizzly population was low enough to warrant reclassification from threatened to endangered in 1993 and reaffirmed its finding in 1999. Again, no action has been taken on these findings due to work on "higher priority" species. Id. at 46. Although the Fish & Wildlife Service characterizes population trend statistics as inconclusive, that conclusion is at odds with record as there appears to be a reasonable likelihood that the population is decreasing due to heavy grizzly bear mortalities in 1999 and 2000. Id. at 11-12, 50.⁴ The most recent population trend analysis demonstrates a seventy-five (75) percent likelihood that the population is in decline. FS AR CD 5-12a at 71.

B. The Wakkinen Study

In 1997, Idaho Fish and Game Department Biologist Wayne Wakkinen and Fish & Wildlife Service biologist Wayne Kasworm published a study using research data from radio-collared grizzly bears in the Selkirk and Cabinet-Yaak Ecosystems to determine open and total road density and core habitat levels necessary to support the grizzly bear population (the "Wakkinen study"). FWS AR 413. The Wakkinen study is based on data derived from observation of six female grizzlies in their home ranges, each of which produced young during or prior to the five-year study period from 1989 to 1994. Id. at 23; FS AR 19-9 at 4-29. From this information the authors drew an inference to support their conclusion that on average a female grizzly's home range in the Cabinet-Yaak and Selkirk Ecosystems has open motorized road density exceeding one mile per square mile on thirty-three (33) percent of the area, total motorized road density exceeding two miles per square mile on twenty-six (26) percent of the area, and core habitat in fifty-five (55) percent of the area. FWS AR 413 at 1.⁵⁶

The Wakkinen study found that about ninety (90) percent of the habitat use by bears in the Cabinet-Yaak and Selkirk Recovery Zones occurred in core areas measuring ten (10) square miles or greater and ninety-five (95) percent of habitat use occurred in areas of four (4) square miles or greater. FWS AR 413 at 22; ...