Coalition v. Weber
| Decision Date | 13 January 2016 |
| Docket Number | CV 13-129-M-DWM |
| Court | U.S. District Court — District of Montana |
| Parties | SWAN VIEW COALITION, FRIENDS OF THE WILD SWAN, NATIVE ECOSYSTEMS COUNCIL, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs, v. CHIP WEBER, Flathead National Forest Supervisor, FAYE KRUEGER, 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 the Interior, Defendants. |
In June 2013, Plaintiffs Swan View Coalition, Friends of the Wild Swan, Native Ecosystems Council, and Alliance for the Wild Rockies ("Plaintiffs") filed a lawsuit challenging the Glacier Loon Fuels Reduction and Forest Health Project ("the Project") under the Environmental Species Act ("ESA"), the National Environmental Policy Act ("NEPA"), and the National Forest Management Act ("NFMA"). On September 25, 2014, summary judgment was granted in favor of Defendants on all of Plaintiffs' claims except four, two of which relate to the Project. (Doc. 51.) First, the Court held the United States Forest Service ("Forest Service") improperly reached a "no effect" determination for water howellia and bull trout under the standards of ESA Section 7 by failing to recognize the low threshold for a "may affect" determination. (Id. at 20-21.) Second, the Court held that the Forest Service erroneously determined that numerical objectives under Amendment 19, which provides protections for grizzly bears, did not apply to certain subunits in the Project area. (Id. at 26-27.) The Project was enjoined, and these matters were remanded to the agency. (Id. at 55.)
Defendants move to lift the injunction on the grounds that the Forest Service and the United States Fish and Wildlife Service ("Fish and Wildlife Service") have completed the necessary analysis. (Doc. 86.) That motion is denied. While the agencies have met their Section 7 obligations for all three species, a supplemental environmental assessment ("EA") is required. As the parties are familiar with the facts surrounding the Project, they are not restated below.
SUMMARY CONCLUSION
The agencies' conclusion that the Project may affect but is not likely to adversely affect water howellia, bull trout, and grizzly bears is not arbitrary or capricious. The agencies considered the relevant factors and articulated a rational connection between the facts surrounding the Project and its impact on all threespecies. Nevertheless, NEPA's statutory obligations require the preparation of a supplemental EA due to the application of the incorrect Forest Plan Amendment 19 access objectives in the original EA. Plaintiffs' remaining arguments as to reconsultation on the Canada lynx and Amendment 19 lack merit.
LEGAL STANDARDS
Rule 60(b) allows courts to "relieve a party or its legal representative from a final judgment, order, or proceeding [if] . . . the judgment has been satisfied, released, or discharged." Fed. R. Civ. P. 60(b)(5). A party seeking dissolution of an injunction may meet its initial burden by showing that there has been a significant change in facts or law. Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 384 (1992).
Courts review claims regarding the ESA, NEPA, and NFMA under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 706 et seq. See Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir. 2002) (ESA and NEPA); Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th Cir. 2011) (NEPA and NFMA). Under the APA, a "reviewing court shall hold unlawful and set aside agency action . . . found to be [] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A).The court's scope of review is narrow, and the court is "not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A decision is arbitrary and capricious:
only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation 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.
Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217, 1224 (9th Cir. 2011). An agency's actions are valid if it "considered the relevant factors and articulated a rational connection between the facts found and the choices made." Id. (citation and internal quotation marks omitted). So long as the record supports the agency's decision, that decision should be upheld even if the record could support alternative findings. Arkansas v. Oklahoma, 503 U.S. 91, 112-13 (1992). Review of the agency's action is "highly deferential, presuming the agency action to be valid." Buckingham v. Sec'y of U.S. Dep't of Agric., 603 F.3d 1073, 1080 (9th Cir. 2010).
ANALYSIS
Pursuant to Section 7(a)(2) of the ESA, each federal agency ("action agency") must, in consultation with the Fish and Wildlife Service or the NationalMarine Fisheries Service (the "consulting agency"), ensure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of the designated "critical habitat" of the species. 16 U.S.C. § 1536(a)(2). If a listed species or critical habitat may be present, an action agency must determine whether the action "may affect" the listed species or critical habitat. 16 U.S.C. § 1536(c)(1); 50 C.F.R. §§ 402.13, 402.14. If a "may affect" determination is made, the action agency must pursue either "formal" or "informal" consultation. In informal consultation, the action agency may provide a "biological assessment" to the consulting agency evaluating "potential effects of the action" on species that "may be present in the area." 16 U.S.C. § 1536(c)(1); 50 C.F.R. §§ 402.02, 402.13. If the action agency concludes the proposed action may affect but is not likely to adversely affect the listed species, and if the consulting agency concurs in writing, then no further consultation is necessary. 50 C.F.R. § 402.13. If, however, the action agency concludes that the proposed action is likely to adversely affect a listed species, "formal consultation" must be undertaken. 50 C.F.R. §§ 402.13, 402.14.
The species at issue on remand are bull trout, water howellia, and grizzly bears. The agencies have met their Section 7 obligations as to all three species.
In its initial analysis, the Forest Service concluded that the Project would have "no effect" on bull trout and bull trout critical habitat because they were not present in two of the four watersheds, N2:26709-10, and there was only a chance for a small amount of increased sedimentation in the remaining two, id; V2:44627-30. The Forest Service also made a "no effect" determination for water howellia on the grounds that the Project imposes a 300' buffer between Project activity and ponds that either currently hold howellia or could support it. J1:16384, 16393; V2:44520-21; V3:44986. This Court held that the Forest Service's determination was arbitrary and capricious in both instances due to the low "may affect" threshold and remanded for further analysis. (Order, Doc. 51 at 20-21, 55.)
Following remand, the agencies met their ESA Section 7 obligations in regards to water howellia and bull trout.1 The Forest Service prepared amended biological assessments and concluded that the Project "may affect but is not likely to adversely affect" water howellia, bull trout, and bull trout critical habitat. (Ex. B: Bio. Assess. for Threatened Plants ("Plant Assessment") (Feb. 12, 2015), Doc. 87-2 at 20; Ex. C: Bio. Assess. for Bull Trout ("Bull Trout Assessment") (Jan. 2015), Docs. 87-3, 87-4, 87-5 at 9.) According to the Plant Assessment, effects to water howellia are discountable as they are extremely unlikely to occur, (Doc. 87-2 at 20), and, if the effects did occur, they "would be immeasurable" and mitigated by a 300' no-ground-disturbance buffer and adapted road maintenance best management practices for roads that existed prior to listing, (id. at 14-15). Similarly, the Bull Trout Assessment states that the amount of sediment deposited by the Project is expected to be "so small it would not degrade or impact water quality or fish habitat" on Kraft Creek, (Doc. 87-5 at 9), and "too trivial to actually impair bull trout use of Lindbergh Lake or [the] migratory corridor of the Swan River," (id. at 15).2 The Fish and Wildlife Service concurred in the Forest Service's determinations. (Ex. E, Doc. 87-7 at 4 (water howellia), 5-6 (bull trout).) The agencies' Section 7 analysis for water howellia, bull trout, and bull trout critical habitat is neither arbitrary nor capricious.
The Court has not yet ruled on whether the agencies' Section 7 analysis regarding the grizzly bear is arbitrary and capricious, waiting to do so until the Forest Service considered the correct Amendment 19 numerical access objectives relating to grizzly bear under the Forest Plan. (Order, Doc. 51 at 27, 55.) Following remand, the Forest Service concluded that baseline access conditions inthe Glacier Loon and Buck Holland subunits "may affect and are likely to adversely affect" bears but confirmed its previous determination that the Project itself "may affect but is not likely to adversely affect" bears. (Amend. Bio. Assess. for Threatened & Endangered Terrestrial Wildlife Species (Feb. 4, 2015), Ex. D, Doc. 87-6 at 4, 27.) In its letter of June 15, 2015, the Fish and Wildlife Service agreed that the Project-related effects of the proposed action, as opposed to the effects related to existing access conditions,...
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