Hunters v. Marten, CV 19-47-M-DLC (

• Decision Date: 01 July 2020
• Docket Number: C/w Case No. CV 19-106-M-DLC),CV 19-47-M-DLC (
• Citation: 470 F.Supp.3d 1151
• Parties: Helena HUNTERS and Anglers Association, and Montana Wildlife Federation, Plaintiffs, and Alliance for the Wild Rockies, and Native Ecosystem Council, Consolidated Plaintiffs, v. Leanne MARTEN, in her official capacity; United States Forest Service; United States Department of Agriculture, Federal Defendants, and State of Montana, and Montana Bicycle Guild, Defendant-Intervenors.
• Court: U.S. District Court — District of Montana

470 F.Supp.3d 1151

Helena HUNTERS and Anglers Association, and Montana Wildlife Federation, Plaintiffs, andAlliance for the Wild Rockies, and Native Ecosystem Council, Consolidated Plaintiffs,

v. Leanne MARTEN, in her official capacity; United States Forest Service; United States Department of Agriculture, Federal Defendants, andState of Montana, and Montana Bicycle Guild, Defendant-Intervenors.

CV 19-47-M-DLC (

C/w Case No. CV 19-106-M-DLC)

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

Signed July 1, 2020

Kelly E. Nokes, Western Environmental Law Center, Taos, NM, Matthew Kellogg Bishop, Western Environmental Law Center, Helena, MT, for Plaintiffs Helena Hunters and Anglers Association, Montana Wildlife Federation.

Jeremiah D. Weiner, Melissa A. Schlichting, Robert Thomas Cameron, Montana Attorney General, J. Stuart Segrest, Montana Department of Justice, Helena, MT, for Defendant State of Montana.

Murry Warhank, Jackson, Murdo & Grant, P.C., Helena, MT, for Defendant Montana Bicycle Guild, Inc.

Kristine Marie Akland, Akland Law Firm, PLLC, Rebecca Kay Smith, Public Interest Defense Center, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, for Plaintiffs Alliance for the Wild Rockies, Native Ecosystems Council.

Erika Danielle Norman, Hayley A. Carpenter, U.S. Department of Justice—E.N.R.D. Natural Resources Section, Washington, DC, for Defendants Leanne Marten, United States Forest Service, United States Fish and Wildlife Service.

ORDER

Dana L. Christensen, District Judge

Before the Court are Plaintiffs Alliance for the Wild Rockies and Native Ecosystems Council's (collectively, "Alliance") Motion for Summary Judgment (Doc. 43); Plaintiffs Helena Hunters and Anglers Association and Montana Wildlife Federation's (collectively, "Helena Hunters") Motion for Summary Judgment (Doc. 55); Federal Defendants’ Cross Motion for Summary Judgment (Doc. 63); Defendant-Intervenor Montana Bicycle Guild, Inc.’s Cross Motion for Summary Judgment (Doc. 66); and Helena Hunters’ motions to supplement the administrative record (Doc. 54; 95). For the reasons explained, Helena Hunters’ motions to supplement will be granted in part and denied in part. The Court agrees with Helena Hunters that the Forest Service's authorization of the Tenmile-South Helena Project ("Project") violates the Roadless Rule, the National Environmental Policy Act ("NEPA"), and the Administrative Procedure Act ("APA"). Alliance prevails on its claim that the Project violates the ESA because the Biological Opinion failed to address the Project's addition of recreational trails.

BACKGROUND

The Tenmile-South Helena Project encompasses roughly 60,000 acres south and west of Helena, Montana. AR 006014–15. Much of the Project is located within two inventoried roadless areas ("IRAs"), the Jericho Mountain IRA and Lazyman Gulch IRA, which serve as biological strongholds for elk and grizzly bears. AR 006014, 007077. The eastern half of the Project is characterized by lower elevation grasslands and forests of dry Douglas fir and ponderosa pine. AR 006016. The western half is characterized by higher elevation forests of lodgepole pine, and Douglas and subalpine firs. Id.

In 2009, a mountain pine beetle outbreak caused extensive mortality across the forest. Id. Most of the trees have already fallen, but 20 to 30% remain standing and are expected to fall within the next few years. AR 006204. The dead trees make the area particularly susceptible to wildfire and pose risks to firefighter safety. AR 006217.

The eastern half of the Project falls within the Tenmile watershed which supplies Helena with most of its water needs. AR 006017. The infrastructure to collect and treat this water was initially constructed in 1880 with an addition in 1921. (Doc. 52-1 at 5–6.) The Tenmile System is now outdated and deteriorating, making it particularly vulnerable to fire damage. (Id. at 7.) Helena is in the process of making a sizable investment to upgrade the system, (id. at 8), and the Tenmile Project seeks to protect that investment by reducing fuels and creating fire breaks to mitigate the size of a possible fire and the soil erosion that would inevitably follow, AR 006017.

Given the Tenmile Project's important goals and characteristics, a collaborative planning group of community stakeholders formed in 2008 to make recommendations to the Forest Service on how to best accomplish the Project's purposes. AR 020778. The committee specifically recommended against using "heavy or mechanized equipment," in the roadless areas, AR 008266, because mechanized equipment requires a developed transportation system. During the scoping process, and in the draft environmental impact statement ("EIS"), the Forest Service did not discuss using mechanized equipment to log the roadless areas. The draft EIS included a discussion of three alternatives (a no action alternative and two action alternatives) but neither of the action alternatives contemplated any mechanized logging, road construction or maintenance in the Lazyman Gulch IRA.

In September of 2016, after release of the draft EIS, the Forest Service began developing another action alternative. Unlike the prior alternatives, alternative four proposed mechanized logging within the Lazyman Gulch. Although roadless areas prohibit new road construction, see Special Areas; Roadless Area Conservation, 66 Fed. Reg. 3244, 3245 (Jan. 12, 2001), the Lazyman landscape contains historic remnants of long-abandoned trails and two-tracks, which were developed in the late 1880s for mining, homesteading, and logging purposes. (See Doc. 54-1); AR 005647. These more-than-hundred-year-old routes have never been recognized as "system" roads by the Forest Service, and, after decades of nonuse, they are largely overgrown. (See Doc. 54-1.) Using these historic routes is central to alternative four and, in the Forest Service's mind, avoids the need for road construction.

According to meeting notes from September 2016, a team of Forest Service employees tasked with developing alternative four informed their supervisor that they needed additional time to assess the "truth" of the conditions on the ground to "validate" that the "existing trails, roads, and tracks" were suitable for transporting heavy equipment. AR 010426. A month later, this team met again. AR 010430. The notes from this meeting indicate that the team had "identified numerous two track routes" that could be used for transporting mechanized equipment but still needed to walk the area to inventory these historic features, and that this would "not be a quick and simple process." Id. The supervising ranger informed the team that this was "not urgent." Id. The notes indicate that the team's immediate goal was to "get the user created routes and old mining trails to GIS" to update the road list for alternative four, with the ultimate goal of releasing this information for public comment in just a few weeks’ time. AR 010431, 010427. This map was finished a month later. See AR 010705. The Forest Service released its summary of alternative four in two public "check-ins." AR 015011, 015077. Then, in August of 2017, the Forest Service released the final EIS, selecting alternative four as the preferred alternative. AR 006011.

In December of the same year, in preparation for release of the draft Record of Decision, the team struggled with how to present the roadwork in the Lazyman Gulch.¹ In an email chain with the Forest Ranger supervising the Project, one employee noted that making use of some of the non-system roads would require either temporary road construction or reconstruction. After reviewing the team's recent work on the mapping software, this employee noted that much of the roadwork on the current draft had been minimized from the original draft.² For example, some roads that required reconstruction were listed as requiring only maintenance, whereas others had been changed from new construction to reconstruction. Next to Road 4782-003, a non-system road in the roadless area, the employee indicated that she wasn't sure how to display the roadwork because classifying it as temporary road construction would cause problems. In response, the Forest Ranger instructed her to meet with a supervising employee who would get her up to speed on how to display the intended work. In the end, the final EIS does not display any intended road treatments in the roadless areas. Instead, it indicates only the methods by which various roads will be closed at Project completion.

In December 2018, the Acting Forest Supervisor signed the Record of Decision, approving the Project, and selecting alternative four with a few modifications. AR 009171. As for transportation in the roadless area, alternative four uses 1.7 miles of system roads that predate the Lazyman Gulch's designation as a roadless area. AR 007052. In addition, it makes use of other existing historic routes. AR 009185. The Forest Ranger recognized that the activities proposed in the roadless areas are controversial; nevertheless she "felt [using mechanized equipment] is essential to provide safe conditions for forest workers and ... can be conducted with minimal resource impacts." Id. She emphasized that "[d]uring project activities, no improvements such as reconstruction will occur to [the historic routes], although there may be a need to clear debris such as rocks and downed trees from the routes in order to provide safe and efficient access for crews and mechanized equipment during implementation." Id.

In its final form, the Project proposes treatment activities including over 17,000 acres of logging—including 2,000 acres of mechanized logging in the Lazyman Gulch IRA—prescribed burn, and roadwork. AR 009178, 009181. The Project will close 14 miles of non-system roads in the Lazyman Gulch IRA and add a network of recreational trails in and around the roadless area. AR 007052, 006210.

Helena Hunters and Alliance filed suit on March 19, 2019 and June 20, 2019,...