Friends of the Wild Swan v. U.S. Forest Serv.

• Decision Date: 11 July 2012
• Docket Number: No. CV 11–125–M–DWM.,CV 11–125–M–DWM.
• Citation: 875 F.Supp.2d 1199
• Parties: FRIENDS OF THE WILD SWAN and others, Plaintiffs, v. UNITED STATES FOREST SERVICE and others, Defendants.
• Court: U.S. District Court — District of Montana

875 F.Supp.2d 1199

FRIENDS OF THE WILD SWAN and others, Plaintiffs,

v.UNITED STATES FOREST SERVICE and others, Defendants.

No. CV 11–125–M–DWM.

United States District Court,

D. Montana,

Missoula Division.

July 11, 2012.

Geoff Hickcox, Western Environmental Law Center, Durango, CO, Matthew Kellogg Bishop, Western Environmental Law Center, Helena, MT, for Plaintiffs.

Daniel J. Pollak, U.S. Department of Justice, Washington, DC, Mark Steger Smith, Office of the U.S. Attorney, Billings, MT, for Defendants.

ORDER

DONALD W. MOLLOY, District Judge.

The plaintiffs challenge the Lolo National Forest's proposed Colt Summit Project. Both parties move for summary judgment. The respective motions are granted in part and denied in part. The only viable claim presented is the Forest Service's failure to address past projects or actions in its cumulative effects analysis for lynx: my reasoning is set forth below.

Background

The Environmental Assessment (EA) for the Colt Summit Project proposes, among other things, 2,038 acres of commercial and non-commercial vegetation management, restoration of four miles of streamside road, construction of 1,300 feet of road, reconstruction of 5.1 miles of road, decommissioning of 25.2 miles of road, and noxious weed treatment along approximately 34 miles of road. After reviewing the EA, the Forest Supervisor issued a Finding of No Significant Impact (FONSI) for the project.

The plaintiffs now move for summary judgment, claiming there are a number of problems with the EA and FONSI. Many of the plaintiffs' claims concern lynx and lynx critical habitat. Generally speaking, the plaintiffs insist that the Forest Service's analysis of lynx and lynx critical habitat violates the National Forest Management Act (NFMA), the Endangered Species Act (ESA), and the National Environmental Policy Act (NEPA). They also reason that the Project will violate Forest Service standards because the Service intends to log within wetlands and designated streamside buffers. They further claim that the Service did not properly analyze the potential impacts of a nearby timber salvage project, the Summit Salvage Project. The defendants filed cross motions for summary judgment on the same issues.

Summary Judgment Standard

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.

Analysis

The plaintiffs suggest that the Forest Service's analysis for the Colt Summit Project violates NFMA, NEPA, and ESA in several respects. By and large, though, the analysis is adequate and meets the requirements of the various acts. There is one viable claim—that the Forest Service breached its NEPA obligations by failing to analyze the Project's cumulative effects on lynx. The remedy in such circumstances is to remand this matter to the Forest Service so that it may properly consider cumulative effects on lynx and prepare a supplemental EA.

I. The National Forest Management Act and the Forest Service's standards

The plaintiffs allege that the Project violates three Forest Service standards—two related to lynx and one related to streamside and wetland buffers. The record shows the Project violates none of the lynx or streamside and wetland standards.

A. The National Forest Management Act

NFMA imposes both procedural and substantive requirements on the Forest Service's management of national forests. Hapner v. Tidwell, 621 F.3d 1239, 1246 (9th Cir.2010). Procedurally, NFMA requires the Service to develop and maintain a comprehensive forest plan for each national forest. Id. (citing Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir.2009)); 16 U.S.C. § 1604(a), (e). Once a plan is adopted, all subsequent agency actions and projects must comply with that plan. Id. (citing Ecology Ctr., 574 F.3d at 656). Substantively, NFMA mandates the Forest Service adopt regulations aimed at protecting forest habitat and diversity of wildlife, among other things. 16 U.S.C. § 1604(g)(3). The plaintiffs bear the burden of proving that the Forest Service has violated its standards. Envtl. Protec. Info. Ctr. v. Blackwell, 389 F.Supp.2d 1174, 1219 (N.D.Cal.2004).

“The court's role in reviewing the Service's action is simply to ensure that the Forest Service made no clear error of judgment that would render its action arbitrary and capricious under NEPA.” Native Ecosystems Council v. Weldon, 848 F.Supp.2d 1207, 1211–12 (D.Mont.2012) (citations and internal quotation marks omitted). A reviewing court must only ensure that the Service has not:

• relied on factors which Congress has not intended it to consider,

• entirely failed to consider an important aspect of the problem,

• offered an explanation for its decision that runs counter to the evidence before the agency, or

• offered an explanation that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Id. (citing Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir.2008) (en banc), overruled in part on other grounds as recognized by Am. Trucking Assns., Inc. v. City of L.A., 559 F.3d 1046 (9th Cir.2009)).

B. The VEG S6 standard

The Forest Service's VEG S6 standard is designed and intended to protect lynx. Generally speaking, it prohibits “[v]egetation management projects that reduce snowshoe hare habitat in multi-story mature or late successional forests.” ¹ Two points must be satisfied to trigger this standard: (1) the project has to take place in “multi-story mature or late successional forest” and (2) the project must “reduce snowshoe hare habitat.” While there are exceptions to the VEG S6 standard, neither of the parties discuss or rely on them. Instead, the plaintiffs maintain the Project violates VEG S6 because the record shows that “multi-story mature” timber stands are slated for treatment. To support of their argument, the plaintiffs singly look to a watershed-level map showing that some of the treatments might take place in several multi-story mature stands. ( See M16–39 FS015168.)

The Forest Service previously noted that this particular map shows that some treatments might take place in multi-story, mature stands. But, it explained, site-specific surveys showed that only two of the treatment units were actually multi-story, and those units do not meet the criteria for suitable lynx habitat:

It is of note that VMAP analysis at the watershed scale depicts 668 acres of stands treated as potential lynx habitat and 125 acres as mature multi-storied. Site-specific stand exams revealed that only two units, 6 and 7, are mature multi-storied stands; however, these are dry sites and do not meet criteria for suitable lynx habitat.

(Wildlife Report, FS015217.)

The plaintiffs insist that the Silviculture Report for the Project shows that Units 6 and 7 are “moist” and not “dry sites.” They are correct—the silviculture report does show that Units 6 and 7 are “moist.” ( See Silviculture Report, M11–29 FS012338). Even so, no evidence is provided to refute the Service's conclusion that the units (1) do not meet the criteria for suitable lynx habitat, ( see Wildlife Report, M16–45 FS015217), and (2) do not provide quality snowshoe hare habitat, ( see EA, A–1 FS000065).

The Forest Service explained that the stands slated for treatment “were becoming too mature (stem exclusion) to provide suitable snowshoe hare habitat.” (Lynx and Grizzly Biological Assessment, K–26 FS001480.) It noted in addition that the Project will actually improve snowshoe hare and lynx habitat. (Wildlife Report, M16–45 FS015217.) The plaintiffs do not point to any contrary evidence. There is no record evidence that the Project will “reduce snowshoe hare habitat” ( see VEG S6 standard) in Units 6 and 7. The treatment in these two units does not meet both prongs of the VEG S6 standard so as to trigger its application.

The plaintiffs fail to meet their burden of proving that the Project will violate the VEG S6 standard. They have not shown the Forest Service made a “clear error of judgment” when it concluded that the Project will not violate the standard. See Native Ecosystems Council, 848 F.Supp.2d at 1211–12. Consequently I am compelled to find the Project does not violate the standard.

C. The ALL S1 standard

The ALL S1 standard in the Lolo Forest Plan directs the Forest Service to “maintain habitat connectivity [for lynx] in an LAU and/or linkage area.” An “LAU” is a “Lynx Analysis Unit,” which “is an area of at least the size used by an individual lynx, from about 25 to 50 square miles....” A “linkage area” is a distinct area that “provides connectivity between blocks of lynx habitat.”

The plaintiffs claim the project violates the ALL S1 standard for 3 specific reasons. First, they insist the Service did not consider how logging on both sides of Highway 83 would impact the linkage area. Second, they allege the Forest Service applied the standard incorrectly because it only evaluated whether linkage areas would be “significantly impacted” instead of “maintained.” Finally, they reason that the Service failed to consider what impacts the Project would have on linkage areas outside the Project Area. None of theses arguments is viable in my view.

The Forest Service did consider how the Project would impact lynx travel. In its Wildlife Report, prepared in advance of the EA, it wrote:

Two of the objectives pertain to lynx habitat connectivity. Lynx do not require dense forests as travel corridors, but use a variety of forest...