Coalition v. Weber, No. CV 13–129–M–DWM.

CourtUnited States District Courts. 9th Circuit. United States District Court (Montana)
Writing for the CourtDONALD W. MOLLOY
Citation52 F.Supp.3d 1133
PartiesSWAN 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.
Docket NumberNo. CV 13–129–M–DWM.
Decision Date25 September 2014

52 F.Supp.3d 1133

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.

No. CV 13–129–M–DWM.

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

Signed Sept. 25, 2014.


[52 F.Supp.3d 1138]


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

Mark Steger Smith, Office of the U.S. Attorney, Billings, MT, Ethan Eddy, U.S. Departement of Justice, Washington, DC, for Defendants.


ORDER

DONALD W. MOLLOY, District Judge.
Introduction

This is an action for declaratory and injunctive relief pursuant to the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4331 et seq., the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq., and the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. Plaintiffs are various environmental organizations that challenge the United States Forest Service's (“Forest Service”) and the United States Fish and Wildlife Service's (“Fish and Wildlife Service”): (1) authorization of the Glacier Loon Fuels Reduction and Forest Health Project (“the Project”) on the Flathead National Forest and (2) failure to conduct environmental analysis for decisions regarding the “Legacy Lands” acquisition, operating procedures, and subsequent logging projects in the grizzly bear and lynx analysis areas for the Project. The parties' respective motions for summary judgment, (Docs. 20 and 28), are granted in part and denied in part. Plaintiffs' motion to supplement, (Doc. 14), is denied.

Background
I. Legacy Lands Acquisition

In 2009, the Forest Service acquired title to approximately 111,740 acres of private land previously owned by The Nature Conservancy, known as “Legacy Lands.” X21:59449–60058.1 The lands were previously held by private parties and are intermingled with Forest Service lands. X21:59557. The Nature Conservancy received a $250 million tax refund for the acquired lands, and the Forest Service paid $1.00 in consideration. X21:059559–60. The Nature Conservancy vested all trees of merchantable timber value as reserved logging rights pursuant to 36 C.F.R. § 251.14. X21:59450–51. The Nature Conservancy's deed to the Forest Service was also made subject to the “USFS–TNC Agreed Operating Procedures Regarding Reserved Timber Harvest Rights” (“Agreed Operating Procedures”). X21:59451. The Agreed Operating Procedures “set [ ] forth the terms and conditions under which [The Nature Conservancy] exercise[s] its Timber Rights Reservation and manage[s] incidental and related matters” on the donated lands in question. X21:59526.

II. The Project

The Project includes 37,320 acres and extends south and west of Condon, Montana on the west side of Montana Highway 83 to the south end of Lindbergh Lake. V2:44344. It includes 29,364 acres of public

[52 F.Supp.3d 1139]

(i.e., National Forest system) lands and 7,956 acres of private lands. V2:44468. It implements a variety of national, regional, and local management directives to reduce the risk of high severity wildfire in areas of the Flathead National Forest. V3:44912. The Project is also being undertaken to improve and maintain healthy forest stands, to prevent insect and disease infestations, and to provide timber for commercial use. V2:44913. The Project undertakes these objectives through ten different types of silvicultural treatments on roughly 1,400 acres. V3:44969. It provides access to treated units through an estimated 5.9 miles of temporary road construction and provides for the closure and decommissioning of an estimated 8.4 miles of National Forest System road. V3:44911.

In August 2012, the Forest Service published the Environmental Assessment (“EA”) for the Project. V2:44338. Several species listed under the ESA are present in, or have designated critical habitat in, the Project area. The Project is located in the Northern Continental Divide Grizzly Bear Ecosystem, within the designated “grizzly recovery zone.” V2:44635. The grizzly recovery zone is divided into Bear Management Units and further divided into bear management subunits. V2:44633. The Project is located primarily within the boundaries of the Glacier Loon subunit, and a small portion falls within the Buck Holland subunit. V2:44344. The Project area also lies within six different Lynx Analysis Units. V2:44658–59.

The Forest Service analyzed each of the protected species in a Biological Assessment and concluded the Project would have no effect on bull trout, bull trout critical habitat, and water howellia.2 J1: 16393, N2:26711. The Forest Service determined the Project would not result in jeopardy to the wolverine population. H17:2946–51, H160:11901–903. The Forest Service also concluded the Project is not likely to adversely affect the grizzly bear, H16:2856, will not have significant large-scale negative cumulative effects on Canada lynx, X20:59423, and is not likely to adversely modify or destroy lynx critical habitat, X47:60948.

On February 13, 2013, the Forest Service signed the Decision Notice/Finding of No Significant Impact authorizing the Project. V3:44908. Plaintiffs filed a timely administrative appeal, W2:45338–596, which the Forest Service denied, W19:45828; W21:45845; W23:45863; W25:45876. The Project was expected to commence as early as July 14 or 15, 2014, (Garrity Dec., Doc. 37–1 at ¶ 9; Clay Dec. 38–1 at ¶ 4), and to be fully completed by 2019, V3:44927. On July 1, 2014, Plaintiffs moved for a preliminary injunction to prevent the Project from moving forward. (Doc. 36.) On July 14, 2014, this Court denied that injunction, (Docs. 40 and 41), and on July 15, Plaintiffs appealed that decision to the Ninth Circuit, (Doc. 42). The appeal of this Court's ruling on the preliminary injunction remains pending. Because an appeal under 28 U.S.C. § 1292(a)(1) from an interlocutory order involving a preliminary injunction does not divest the district court with jurisdiction to proceed with a decision on the merits, absent a stay order issued by the Court of Appeals, this Court may proceed on the merits of the parties' motions for summary judgment. See Ex parte Natl. Enameling & Stamping Co., 201 U.S. 156, 162, 26 S.Ct. 404, 50 L.Ed. 707 (1906) (“The case, except for the hearing on the appeal from

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the interlocutory order, is to proceed in the lower court as though no such appeal had been taken, unless otherwise specifically ordered.”); Plotkin v. Pac. Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir.1982).

Plaintiffs raise a number of concerns regarding the Project, including: (1) whether the Forest Service's “no effect” determination for water howellia and bull trout is arbitrary and capricious; (2) whether the procedural requirements of the ESA were met in regards to the wolverine; (3) whether the Project violates NFMA; (4) whether the agencies' analysis regarding grizzly bears, lynx, and lynx critical habitat is sufficient; and (5) whether the Forest Service's decision not to prepare an environmental impact statement (“EIS”) is arbitrary and capricious.

Summary Conclusion

Although Plaintiffs raise numerous challenges to the Glacier Loon Project and the Legacy Lands acquisition and logging projects, very few of Plaintiffs' claims have merit. In all respects, except the following, the Forest Service has complied with both the ESA and NEPA. Plaintiffs correctly contend that the agency was required to engage in ESA and NEPA analysis in the creation of the Agreed Operating Procedures and for site-specific logging projects in the Project area. Regarding the analysis of the Project, the Forest Service's “no effect” determination for water howellia and bull trout is arbitrary and capricious, and the Forest Service failed to follow the necessary procedures under the ESA after reaching a “may affect” conclusion for the wolverine. Further, the Forest Service applied the incorrect standard under Amendment 19, requiring it to reconsider its Section 7 analysis of grizzly bear under the numerical access objectives in the Forest Plan.

Legal Standards
I. Summary Judgment

A party is entitled to summary judgment if it can demonstrate 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 warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only disputes over facts that might affect the outcome of the lawsuit will preclude entry of summary judgment; factual disputes that are irrelevant or unnecessary to the outcome are not considered. Id. at 248, 106 S.Ct. 2505.

II. Administrative Procedure Act

Courts review claims regarding the ESA, NEPA, and NFMA under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 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 law.” 5 U.S.C. § 706(2)(A). The Court's scope of review is narrow, and the Court should “not [ ] 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, 103 S.Ct. 2856, 77 L.Ed.2d 443 (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...

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