Friends of the Clearwater v. Petrick
| Docket Number | Case No. 2:20-cv-00243-BLW |
| Decision Date | 02 March 2022 |
| Citation | 588 F.Supp.3d 1071 |
| Parties | FRIENDS OF the CLEARWATER ; and Alliance for the Wild Rockies, Plaintiffs, v. Carl PETRICK, in his official capacity as Idaho Panhandle National Forest Supervisor; 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 Interior, Defendants, and Stimson Lumber Company, Defendant-Intervenor. |
| Court | U.S. District Court — District of Idaho |
Rebecca Kay Smith, Public Interest Defense Center, P.C., Missoula, MT, for Plaintiffs.
Emma L. Hamilton, DOJ-Enrd, Environment and Natural Resources Division, Denver, CO, Robert Norway, United States Department of Justice, Washington, DC, for Defendants Jeanne Higgins, United States Forest Service, United States Fish & Wildlife Service.
Julie Weis, Pro Hac Vice, Haglund Kelley LLP, Sara Ghafouri, Pro Hac Vice, American Forest Resource Council, Portland, OR, Christopher Michael Bromley, McHugh Bromley, PLLC, for Defendant-Intervenor.
The Court has before it cross motions for summary judgment filed by all parties. The Court heard oral argument on October 6, 2021 and took the motions under advisement. For the reasons explained below, the Court will grant summary judgment to plaintiffs, the environmental groups, on the ESA claim. The Court will grant summary judgment to defendants, the federal agencies, and intervenor Stimson2 on all other claims.
The U.S. Forest Service issued a Decision Notice and Finding of No Significant Impact (FONSI) for the Brebner Flat project on October 3, 2019. FS000001-23. The Brebner Flat project is located in the St. Joe Ranger District of the Idaho Panhandle National Forests in Shoshone County, Idaho. FS000001-23. The project area includes the Theriault Creek, Kelly Creek, Williams Creek, and Siwash Creek drainages within the St. Joe River watershed. FS000024. The northern boundary of the project includes the wildland urban interface of Avery, Idaho and Forest Highway 50. FS000030. Shoshone County has identified this area as an area of concern for their Community Wildfire Protection Plan. Id. The northern boundary of the project is within the St. Joe Wild and Scenic River Corridor, but no proposed activities are within the corridor. FS000009.
The goals of the project are threefold: 1) improve forest health and increase vegetation resilience to large scale disturbances such as wildfire, drought, insect outbreaks, and disease; 2) provide sustainable use of natural resources and benefit local communities; and 3) reduce hazardous fuels to lessen wildfire severity and enable safe fire suppression efforts. FS000001. The project area is almost 12,000 acres and will include approximately 1,700 acres of timber harvest and prescribed burning. FS000024. Approximately 10.5 miles of roads will be permanently or temporarily constructed or reconstructed for the project. FS000033-34.
The Forest Service issued a scoping notice soliciting public comments on the project in early 2018. FS000030. In March 2019, the Forest Service issued a draft Environmental Assessment (EA) and again sought public comment. FS000030. In response, the environmental groups submitted several dozen comments. FS000277-93; FS000190-96. The final EA was issued in June 2019. FS000024.
On October 19, 2018, the local U.S. Fish and Wildlife Service (USFWS) field office sent the Forest Service a species list attached to a letter stating that the list "fulfills the requirements of [USFWS] under section 7(c) of the Endangered Species Act." FS014851-64. The "Official Species List" identified Canada lynx, North American Wolverine, and Bull Trout as the only threatened, endangered, or candidate species that may be present in the project area. FS014853-56.
The Forest Service prepared a Fisheries BA that evaluated the project's possible effects on bull trout and concluded that the project may affect, but is not likely to adversely affect, bull trout or its designated critical habitat. FS013663-734. On June 11, 2019, the Forest Service submitted to USFWS the project's Fisheries BA and a request for concurrence on the potential effects of the project on bull trout. FWS00001. By letter dated July 19, 2019, USFWS concurred with the Forest Service's determination. FS013660-62.
The Forest Service also prepared a supplemental BA analyzing the potential environmental impacts of the project on Canada lynx in September 2020. FS018000-06. The Forest Service concluded that the project would have no effect on Canada lynx. FS018000-06.
The October 19, 2018 species list did not identify the grizzly bear as a species that may be present in the project area. FS014851-64. Nevertheless, in December 2018, the Forest Service prepared a wildlife report that considered, but did not analyze in detail, impacts to grizzly bears. FS014830. The report noted that "although based on current knowledge, the potential for grizzly bear occurrence on the St. Joe Ranger District and in the project area cannot be totally dismissed, there is nothing to suggest any occurrence other than the possibility of transient individuals; with even the potential for that considered to be unlikely." FS014831. The wildlife report determined the project would have no effect on grizzly bears. FS014815.
The Final EA found that no federally endangered or threatened wildlife species were likely to be affected by the project. FS000075.
The Forest Service analyzed the project's impact on elk through the concept of elk security habitat. The Idaho Panhandle National Forest Plan defines elk security habitat as timbered areas greater than 250 acres that are more than one-half mile from a motorized route. REF003332. The forest plan calculates security habitat for individual elk management units and dictates that all management activities maintain existing levels of elk security habitat in each elk management unit. REF003332; REF0033239.
The Brebner Flat project is located within elk management unit 7-6, which is a low-priority management unit. FS000076. The project's timber harvest and road construction will reduce elk security habitat by 210 acres. FS000008.
The Forest Service initially considered amending the forest plan to allow for that reduction in elk security habitat. FS000010. But the Forest Service changed course, opting instead to offset the reduction by closing a road that was not within the project area but was within elk management unit 7-6. FS000061. The Forest Service decided to close approximately one mile of the OHV portion of road 1956E during elk hunting season (September through December).3 FS000082. According to the Forest Service, the closure would increase elk security habitat in elk management unit 7-6 by 314 acres, creating a net 94-acre gain in security habitat and obviating the need to amend the forest plan.4 FS000010.
The EA does not clearly state the mechanism for closing road 1956E but indicates the road "would be signed during the seasonal restriction." FS000061. The wildlife report clarifies the Forest Service's plan to seasonally close the road using a gate.5 FS014822. The EA discusses a monitoring plan "to ensure the security of gates in elk security areas during the closure period." FS000077. The plan includes annually monitoring gates that have been breached in the past as well as 30 percent of gates generally. The Forest Service will also document any damaged or breached gates so that they can be prioritized for repair the next year. FS000077.
Congress designated the St. Joe River as a Wild and Scenic River in 1978. FS013600. The project maps attached to the EA show the project area bordering the St. Joe River. FS000089-91. Siwash Creek, one of the St. Joe's tributaries, flows through the Brebner Flat project area. FS013600. Although no project activities will occur within the wild and scenic river corridor, the project does include the removal of fifteen culverts from non-fish bearing streams in Siwash Creek. FS000013; FS013608; FS013600-01.
In the EA, the Forest Service considered the project's potential impacts to the St. Joe River itself, FS000087; to the hydrology of St. Joe tributaries, FS000069; and to fisheries if sediment reached the St. Joe, FS000083. The Wild and Scenic Rivers Act evaluation determined that removing 15 culverts in Siwash Creek would not diminish the scenic, recreation, fish, or wildlife values of the river. FS013600-01.
During the administrative review process, the environmental groups commented that the EA draft contained "no analysis ... of the impacts on this river," which "must be considered since a portion of the river corridor is within the project area." FS000193. The Forest Service responded by explaining that "[n]o project activities are planned within the [wild and scenic river] boundary" and that the EA's evaluation of potential effects found "[n]o unreasonable diminishment" of the river's "scenic, recreation, fisheries or wildlife qualities." FS000193.
Nevertheless, the final EA incorrectly states that the project area does not include the wild and scenic river corridor. FS000051. The EA goes on to correctly assert that "the wild and scenic river corridor [was] not proposed for timber harvest." FS000057. In addition, the FONSI corrected the misstatement by explaining that, FS000013.
The environmental groups now seek summary judgment on their claims. The environmental groups allege that the Forest Service violated the APA in the following ways: 1) by failing to obtain an adequate species list from the USFWS and by failing to prepare a biological assessment that included...
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