Def. v. Bolling
| Decision Date | 25 August 2020 |
| Docket Number | Case No. 4:19-CV-00245-CWD |
| Parties | WILDLANDS DEFENSE, ALLIANCE FOR THE WILD ROCKIES, and NATIVE ECOSYSTEMS COUNCIL, Plaintiffs, v. MEL BOLLING, in his official capacity as Forest Supervisor of the Caribou-Targhee National Forest, and UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture, Defendants. |
| Court | U.S. District Court — District of Idaho |
Wildlands Defense, Inc., Alliance for the Wild Rockies, and Native Ecosystems Council ("Plaintiffs") bring this civil action for judicial review against the United States Forest Service ("Forest Service") and Mel Bolling, the Forest Supervisor and chief representative for the Caribou-Targhee National Forest. Plaintiffs challenge the Forest Service's decision approving the Rowley Canyon Wildlife Enhancement Project ("Project") within the Caribou-Targhee National Forest, which authorizes the thinning of existing juniper trees and prescribed burning to eliminate the threat of future catastrophic fire.
Plaintiffs seek judicial review of the Forest Service's June 17, 2019 Decision Memorandum (Decision Memo) pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701 et. seq. ("APA"). Plaintiffs claim the Forest Service violated the National Environmental Policy Act 42 U.S.C. §§ 4321 et. seq. ("NEPA") by approving the Project under a categorical exclusion, contending extraordinary circumstances warrant further analyses in three areas. Specifically, Plaintiffs allege the Forest Service failed to sufficiently analyze wilderness qualities and attributes and roadless area characteristics; failed to sufficiently analyze impacts on the Columbian sharp-tailed grouse, a Forest Service sensitive species, and its habitat; and did not consider the cumulative effects of the Project with impacts from grazing. The Forest Service responds that it complied with NEPA by utilizing and applying a categorical exclusion, and that its finding that there are no extraordinary circumstances warranting further analysis is supported by the record.
Before the Court are cross motions for summary judgment which have been fully briefed and are ripe for consideration. (Dkt. 15, 18.) The Court conducted a video hearing on July 21, 2020, and took the motions under advisement. For the reasons outlined below, the Court will grant Defendants' motion and deny Plaintiffs' motion.
The Rowley Canyon Wildlife Enhancement Project1 is intended to improve and promote elk and deer winter habitat as well as improve habitat for ruffed grouse and the Columbian sharp-tailed grouse, and to work toward a more natural fire regime. Decision Memo, AR 40557 - 40558. Specifically, the Project's goals are to "increase vegetation resiliency," "diversify the age class and canopy structure," "manage the density of juniper areas," and restore "understories of the mountain brush and mahogany stands," to promote "resiliency" and minimize "the potential negative effects of a high intensity wildfire." Decision Memo, AR 40557 - 58. To achieve these goals, the Forest Service proposed to treat three distinct Treatment Areas comprising 1,666 acres of the 3,955 acre Project Area by selectively pre-felling juniper trees, and utilizing prescribed burning, to thin juniper canopy cover and eliminate the threat of future intense wildfire. AR 31009-31011; 31130; 40557-40558; 00467; 40320. Thereafter, desirable plant species would be seeded and planted to promote wildlife habitat and aid in restoration of plant communities within the treatment areas where needed. AR 40559. Project management practices and design features include post-treatment monitoring for noxious weed infestation and to ensure objectives are being met. AR 40567 - 68.
The Project's boundaries are within the Elkhorn Mountain Inventoried Roadless Area (IRA), which is comprised of approximately 41,800 total acres. AR 040562; AR 040346-040352. The Project Area is 3,955 acres, of which only 1,666 acres, or 4% of the IRA, will be treated. AR 040558.
The recreation, trails, and scenery supervisor for the Forest Service prepared a worksheet, finalized on April 26, 2019, describing the actual effect of Project activities upon wilderness qualities and attributes, and roadless characteristics. AR 40346 - 40352. The worksheet summarized the Project's effects on nine roadless characteristics, including: (1) soil, water and air resources; (2) sources of public drinking water; (3) diversity of plant and animal communities; (4) habitat for threatened or endangered species and species dependent on undisturbed areas of land; (5) primitive and semiprimitive classes of recreation; (6) reference landscapes for research study or interpretation; (7) landscape character and integrity; (8) traditional cultural properties and sacred sites; and (9) other locally unique characteristics.
Although the Elkhorn Mountain Roadless Area is not currently designated as wilderness, the evaluation considered the Project's effects on wilderness qualities and attributes, including: (1) untrammeled; (2) natural; (3) undeveloped; (4) special features; and (5) manageability as wilderness. AR 40346-40352.
The recreation, trails, and scenery supervisor concluded that the cutting of selected juniper trees and sagebrush/mixed brush, and prescribed spring and fall fire, would not change the existing natural appearing character of the Elkhorn Roadless Area; and would maintain mixed-age sagebrush and associated vegetation cover; enhance habitat; retainscenic integrity; and enhance fall color long-term. AR 40347 - 48. She further concluded that the Project would not affect the area's suitability for wilderness designation in the future. AR 40349.
In the June 17 Decision Memo, the Forest Service addressed the impact upon the area's roadless characteristics and wilderness qualities. The Forest Service determined the Project will not lead to any significant impacts and no extraordinary circumstances warrant further analysis because no roads are being built; no timber harvest/removal from the Project Area is proposed; and roadless area characteristics will be maintained with project implementation. AR 40562. The Forest Service indicated that "all practical means have been employed to avoid and/or minimize environmental impact" upon visual resources. AR 40560.
On June 7, 2019, prior to the Decision Memo, a wildlife biologist from the Forest Service completed a biological assessment ("BA") concerning wildlife present in the area. AR 40444 - 40463. As part of that evaluation, the biologist assessed the potential effects of the Project on the Columbian sharp-tailed grouse (Tympanuchus phasianellus columbianus).2 The evaluation contained a description of sharp-tailed grouse preferred habitat. AR 40449. The biologist noted that there is suitable sagebrush and mountain brush habitat within the Project area, particularly on the south end of the Project, but no sharp-tailed grouse were observed during wildlife surveys, and no known sharp-tailedgrouse leks (communal breeding display areas) were within the Project area. AR 40449. The evaluation considered the potential direct, indirect and cumulative effects of the proposed project upon the sharp-tailed grouse and its habitat. AR 40450 - 40453.
The biologist concluded that the Project "may impact individuals, but will not likely contribute toward a federal listing or loss of viability to the population or species." AR 40453. The biologist's conclusion was based upon the following: (1) there are no leks within the Project area or within two miles of the Project boundary; (2) the area containing suitable mountain brush habitat "does not seem to be readily used by sharp-tailed grouse"; and (3) treatments will have a small, short-term (one season) impact of reducing the amount of habitat in the mountain brush community, then, as vegetation returns, the habitat quality for sharp-tailed grouse will improve. AR 40453. The evaluation further concluded that, because direct and indirect impacts to sharp-tailed grouse would be negligible, there would be "no cumulative effects from this project and any past, present and reasonably foreseeable future projects" on sharp-tailed grouse. AR 40453.
With reference to the BA, the Forest Service concluded in the Decision Memo there were no extraordinary circumstances with respect to the Project's impact on the sharp-tailed grouse. AR 40561. Relying upon the BA, the Forest Service concluded that the Project "may impact individual Columbian sharp-tailed grouse but will not likely contribute toward a federal listing or loss of viability" to the species. Decision Memo, AR 40561.
On May 30, 2019, a rangeland management specialist for the Forest Service completed a Range and Noxious Weed Report. AR 40311 - 40331. The evaluation set forth current conditions and desired future conditions, and analyzed the potential effects for weed spread in disturbed areas during project implementation. AR 40312 - 40314. The specialist recommended project design criteria to minimize weed infestation following treatment. AR 40314. Seed mix and seeding methods were analyzed as well, including plant recovery and potential effects on habitat following implementation of the Project. AR 40142 - 40144; AR 40559; AR 40395-40425; AR 00467-00469; AR 40436; AR 02643; AR 40079-40114; AR 40322; AR 40451-40457; AR 40198-40200; AR 31009-31011.
The impact of noxious/invasive weeds received consideration in the Decision Memo. AR 40560. To limit invasive expansion during and after the Project, the Forest Service incorporated the design criteria recommended by the rangeland management specialist in the range and noxious weed report: "Wash/clean equipment before entering area," "Avoid, as is practical, creating continuous areas of masticated mulch deeper than 3 to 4 inches which can inhibit plant growth," "Monitor project area for noxious weed infestations," and that "Monitoring post-implementation will ensure...
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