Native Ecosystems Council & Alliance for the Wild Rockies v. U.S. Forest Serv.

• Decision Date: 06 June 2012
• Docket Number: Case No. 4:11–cv–00212–CWD.
• Citation: 866 F.Supp.2d 1209
• Court: U.S. District Court — District of Idaho
• Parties: NATIVE ECOSYSTEMS COUNCIL & ALLIANCE FOR THE WILD ROCKIES, Plaintiffs, v. UNITED STATES FOREST SERVICE, acting by and through Ashton/Island Park District Ranger on the Caribou–Targhee National Forest Elizabeth DAVEY, Harv Forsgren, Regional Forester for Region 4 of the United States Forest Service, United States Secretary of the Interior Ken Salazar, & United States Fish & Wildlife Service, acting by and through Acting Director Rowan Gould, Defendants.

866 F.Supp.2d 1209

NATIVE ECOSYSTEMS COUNCIL & ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,

v.UNITED STATES FOREST SERVICE, acting by and through Ashton/Island Park District Ranger on the Caribou–Targhee National Forest Elizabeth DAVEY, Harv Forsgren, Regional Forester for Region 4 of the United States Forest Service, United States Secretary of the Interior Ken Salazar, & United States Fish & Wildlife Service, acting by and through Acting Director Rowan Gould, Defendants.

Case No. 4:11–cv–00212–CWD.

United States District Court, D. Idaho.

June 6, 2012.

K.E. Purcie Bennett, Bozeman, MT, Dana M. Johnson, Law Office of Dana Johnson, PLLC, Moscow, ID, for Plaintiffs.

Alison D. Garner, U.S. Dept. of Justice Environment/Natural Resources Div., Washington, DC, Rickey Doyle Turner, Jr., U.S. Department of Justice, Denver, CO, Syrena Case Hargrove, U.S. Attorney's Office, Boise, ID, for Defendants.

MEMORANDUM DECISION AND ORDER

CANDY W. DALE, United States Chief Magistrate Judge.

INTRODUCTION

In 2005, the United States Forest Service adopted a revised map delineating analysis units for the Canada lynx within the Caribou–Targhee National Forest. The Canada lynx is listed as a threatened species under the Endangered Species Act and the land within the boundaries of Lynx Analysis Units (“LAUs”) is subject to various restrictions, including a prohibition on precommercial thinning of trees. The 2005 map eliminated eight LAUs located within the Caribou–Targhee National Forest and removed approximately 400,000 acres of land previously subject to the restrictions applicable to LAUs.

In December of 2009, the Forest Supervisor for the Caribou–Targhee National Forest authorized the Split Creek Precommercial Thinning Project (the “Split Creek Project” or “Project”). The Project authorized the precommercial thinning of approximately 7,000 acres of lodgepole pine located within the Island Park and Madison–Pitchstone Plateaus Subsections of the Caribou–Targhee National Forest. The Forest Service prepared an Environmental Assessment for the Project under the National Environmental Policy Act (“NEPA”) and a Biological Assessment of the potential affects of the Project on the Canada lynx and its habitat under the Endangered Species Act (“ESA”).

In its review under NEPA, the Forest Service concluded that the Project “will not have a significant effect on the quality of the human environment” and that the preparation of a more detailed Environmental Impact Statement was not necessary. (Administrative Record 12225.) ¹ In its review under the ESA, the Forest Service concluded that the Project “may affect, but is not likely to adversely affect” the Canada lynx or its habitat. (AR 5691.) Both analyses rely heavily on the 2005 map and the fact that the Project area is not within an LAU. Prior to its use as a justification for the authorization of the Split Creek Project, the 2005 map had not been analyzed under NEPA.

Based upon these findings, the Project commenced on July 8, 2010, and the Forest Service thinned approximately 1,350 acres of lodgepole pine. Year two of the Project commenced in August of 2011, and it was anticipated that approximately 2,400 acres of lodgepole pine would be thinned. The Project is scheduled to continue each season until the full 7,000 acres are thinned.

On May 11, 2011, Native Ecosystems Council and the Alliance for the Wild Rockies (“Plaintiffs”)—non-profit organizations dedicated to the conservation and preservation of natural resources and biodiversity in the Northern Rockies—filed an action against the United States Forest Service, the United States Fish and Wildlife Service (“FWS”), Secretary of the Interior Ken Salazar, and various other federal employees associated with these agencies (collectively “Defendants”).² (Dkt. 1.)

Plaintiffs challenge two actions taken by Defendants. First, Plaintiffs challenge the Forest Service's authorization of the Split Creek Project. Plaintiffs contend that the Project is detrimental to the habitat of the Canada lynx, and by extension to the lynx itself. Second, Plaintiffs challenge Defendants' adoption of the 2005 LAU map, arguing that the map should have been subjected to NEPA review and that the failure to do so undermines the agency decisions related to authorization of the Project, which rely on the map. Plaintiffs argue that the approval of the 2005 map and the authorization of the Project violated NEPA, 42 U.S.C. § 4331 et seq., the ESA, 16 U.S.C. § 1531 et seq., and the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq.

Before the Court are the parties' cross-motions for summary judgment. ( Pl.s' Mot. for Summ. J., Dkt. 45; Def.s' Cross–Mot. for Summ. J., Dkt. 46.) A hearing on the parties' motions was held on February 28, 2012. Having fully considered the parties' briefing and arguments, and having reviewed the voluminous administrative record and the applicable legal authorities, the Court finds that the Forest Service's failure to prepare an Environmental Impact Statement for a decision that ultimately opened approximately 400,000 acres of previously protected land to precommercial thinning violated NEPA. Moreover, like a house of cards built on an unsound foundation, because the 2005 map was not analyzed under NEPA, the agency's analysis under the ESA—which is based upon the validity of the 2005 map—cannot withstand judicial review. Based on the above, and as more fully explained below, Plaintiffs' motion for summary judgment will be granted in part, the Split Creek Project will be enjoined, and the case will be remanded to the agencies for further proceedings consistent with this Memorandum Decision and Order.

FACTUAL AND PROCEDURAL BACKGROUND

1. Designation of the Canada Lynx as a Threatened Species and Mapping of Lynx Habitat

On March 24, 2000, the FWS added the Canada lynx ( Lynx canadensis ) to the list of threatened species under the Endangered Species Act. 65 Fed.Reg. 16052–1, 2000 WL 299328. Following nearly a decade of analysis, the agency determined that the lynx population of the continental United States was threatened by “the lack of guidance for conservation of lynx and snowshoe hare habitat in the National Forest Land and Resource Plans.” (AR 1524.) The FWS concluded that “it is imperative that lynx habitat and habitat for lynx prey [primarily snowshoe hare] be maintained and conserved on Federal lands.” 65 Fed.Reg. 16051–01.

In 2000, an interagency lynx biology team, which consisted of biologists from the Forest Service, the FWS, the Bureau of Land Management, and the National Park Service, developed the Canada Lynx Conservation and Assessment and Strategy (“LCAS”) as an interim and guiding conservation strategy for lynx on federal lands. (AR 5307–5309.) The LCAS required the Forest Service and the FWS to delineate LAUs “upon which direct, indirect, and cumulative effects” from site-specific projects could be analyzed. (AR 4695–96.) “An LAU is an area of at least the size used by an individual lynx, from about 25 to 50 square miles[,]” (AR 1591), and must contain “at least 10 square miles of primary [lynx habitat to support reproduction and survival].” (AR 4672–73.) According to the LCAS, LAUs were “not intended to depict actual lynx home ranges, but are intended to provide analysis units of the appropriate scale with which to begin the analysis of potential direct and indirect effects of projects or activities on individual lynx, and to monitor habitat changes.”

In 2001, the Forest Service and the FWS delineated LAUs for the Island Park and Centennial Mountain areas of the Caribou–Targhee National Forest (“C–TNF”). ³ (AR 4820.) The parties refer to this as the 2001 map. The 2001 map depicts several LAUs within the C–TNF, including what would become the Split Creek Precommercial Thinning Project area. Of the total 1,134,779 acres within the boundaries of an LAU in the forest, 645,049 acres were considered primary suitable habitat, 126,795 were secondary suitable habitat, 98,554 were primary unsuitable habitat and 8,565 were considered secondary unsuitable habitat. (AR 4821.) The 2001 map also identifies LAUs within the project area containing “primary” lynx habitat. ( Id.)

During this same time period, the Forest Service and the FWS entered into a Lynx Conservation Agreement in the year 2000. The agreement served as a framework for lynx conservation within mapped lynx habitat on national forests and was revised in 2005 and again in 2006 to implement the standards and guidelines in the LCAS until formal management could be implemented.

In 2005, as contemplated by the LCAS, the agencies revised the LAU designations in the Island Park and Centennial Mountain areas. (AR 3098, 5675.) According to the FWS, “[a]s new information became available (including information on habitat quality, snowshoe hare studies, and habitat mapping), it became necessary to refine the [original] LAU map,” and in 2005, the Forest Service developed a revised LAU map for the Island Park and Centennial Mountain area. (AR 5697.) In the revisionprocess, the agencies used a habitat model that predicted the probability of moist subalpine fir habitat in the Island Park and Centennial Mountain areas. (AR 5623–28.) The habitat model used a topographic methodology (evaluating elevation, slope, soil, etc.) that allowed the agencies to more accurately separate the moist subalpine fir habitat (which the agencies previously found to be primary lynx habitat) from the dry subalpine fir habitat types (which the agencies previously found were not associated with primary lynx habitat). (AR 5623–27.)

When this habitat model was applied to the Island Park and Centennial Mountain areas, the agencies found that the occurrence of moist subalpine fir habitat in the 2001 LAU map had been significantly overestimated. (AR 5623) (“estimated occurrence of [moist] subalpine fir habitat type [in the Island Park area] was considerably (>30%) less than previously mapped.”)....