Native Ecosystems Council v. Marten
| Decision Date | 26 March 2020 |
| Docket Number | CV 18-87-M-DLC |
| Court | U.S. District Court — District of Montana |
| Parties | NATIVE ECOSYSTEMS COUNCIL, ALLIANCE FOR THE WILD ROCKIES, Plaintiffs, v. LEANNE MARTEN, Regional Forester, USFS Region One, U.S. FOREST SERVICE, and U.S. FISH & WILDLIFE SERVICE, Defendants. |
Before the Court are Plaintiffs Native Ecosystems Council and Alliance for the Wild Rockies' ("Plaintiffs") Motion for Summary Judgment (Doc. 40), Federal Defendants Cross Motion for Summary Judgment (Doc. 51), and Defendant-Intervenor Sun Mountain Lumber, Inc.'s (collectively "Defendants") Cross Motion for Summary Judgment (Doc. 55). Plaintiffs have also filed a Motion to Supplement the Administrative Record. (Doc. 43.) The Court held a hearing on November 13, 2019. Then, on January 14, 2020, the Court ordered the parties to provide supplemental briefing on Defendants' contention that no biological assessment was required for wolverine because the North Hebgen Multiple Resource Project ("North Hebgen Project" or "Project") is not a major construction activity. For the reasons explained, the Court now grants in part and denies in part the parties' respective motions.
BACKGROUND
The Project is located within the Greater Yellowstone Ecosystem on the Hebgen Ranger District of the Custer-Gallatin National Forest, just north of West Yellowstone, Montana. NH 000073. The Project area is immediately adjacent to Yellowstone's western boundary, encompassing the Horse Butte Peninsula. It is bordered to the north by the Tepee Creek drainage and to the south by the Madison arm of Hebgen Lake. Id. The Project is designed to minimize damage from fire, improve forest health, and decrease human-grizzly bear interactions at a popular campground. NH 000075. Eighty percent of the Project will occur within the wildland urban interface. Id. The Project involves 5,670 acres of treatment, including treatment of 908 acres of actual and possible old growth forest within the Madison Mountain Range. See NH 000116. The Project would require the construction of 15.6 miles of new roads and take 8 to 12 years to complete. NH 000086.
LEGAL STANDARDS
The National Environmental Policy Act ("NEPA") Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1066 (9th Cir. 2002) (quoting Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (internal quotations and citations omitted). "NEPA is a procedural statute that does not mandate particular results but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions." High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 639-40 (9th Cir. 2004) (internal citations and quotation marks omitted); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989) ().
Before undertaking any "major Federal action significantly affecting the quality of the human environment," an agency must prepare a detailed environmental impact statement ("EIS"). 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.11. In order to decide whether a project is a "major Federal actionsignificantly affecting" the environment therefore requiring an EIS, an agency may prepare an environmental assessment ("EA"). 40 C.F.R. § 1508.9. An EA is a "concise public document" that "briefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement." Id. "NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail." 40 C.F.R. § 1500.1(b). If the EA concludes that the proposed action will not have a significant effect on the environment, the agency may issue a Finding of No Significant Impact and may then proceed with the action without the need for an EIS. 40 C.F.R. § 1508.13.
The National Forest Management Act ("NFMA") requires forest planning of national forests at two levels: the forest level and the individual project level. 16 U.S.C. §§ 1600-1687. At the forest level, NFMA directs the Department of Agriculture to "develop, maintain, and, as appropriate, revise [forest plans] for units of the National Forest System." 16 U.S.C. § 1604(a). A forest plan sets broad guidelines for forest management and serves as a programmatic statement of intent to guide future site-specific decisions within a forest unit. Citizens for Better Forestry v. U.S. Dep't of Agric., 341 F.3d 961, 966 (9th Cir. 2003); Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 729 (1998). Forest plans must "provide for multiple use and sustained yield of the products and services" derived from thenational forests, including "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1). At the individual project level, NFMA requires that each individual project be consistent with the governing forest plan. Great Old Broads for Wilderness v. Kimbrell, 709 F.3d 836, 851 (9th Cir. 2013).
The Forest Service's interpretation and implementation of its own forest plan is entitled to substantial deference. Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003). This deference may be set aside only where an agency takes a position that is "contrary to the clear language" of the forest plan. Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 962 (9th Cir. 2005).
The Endangered Species Act ("ESA") "requires the Secretary of the Interior to promulgate regulations listing those species of animals that are 'threatened' or 'endangered' under specified criteria, and to designate their 'critical habitat.'" Bennett v. Spear, 520 U.S. 154, 157-58 (1997) (citing to 16 U.S.C. § 1533). The ESA also requires each federal agency to ensure that an agency action is not likely to "jeopardize the continued existence" of a threatened or endangered species. 16 U.S.C. § 1536(a)(2). An "action" is "all activities or programs of any kind authorized, funded, or carried out . . . by Federal agencies." 50 C.F.R. § 402.02.
To ensure compliance with this mandate, the ESA's implementing regulations outline a detailed process to ensure that the action agencies consult with an appropriate expert agency—here, the Fish and Wildlife Service ("FWS"). The agency's first step in complying with Section 7 is to obtain from FWS "a list of any listed or proposed species or designated or proposed critical habitat that may be present in the action area." 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12(c)-(d) (emphasis added). If FWS advises that these species or their habitat "may be present," the Forest Service must complete a biological assessment ("BA") to determine if the proposed action "may affect" or is "likely to adversely affect" the listed species. 16 U.S.C. § 1536(c)(1); 50 C.F.R. §§ 402.12(f), 402.14(a), (b)(1); Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir. 2006). If the Forest Service determines that an action "may affect" a listed species, the Forest Service must consult with FWS under Section 7 of the ESA. Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1027 (9th Cir. 2012). Consultation may be formal or informal. 50 C.F.R. § 402.14; Karuk Tribe of Cal., 681 F.3d at 1027. Formal consultation is obligatory where the Forest Service determines that an action is "likely to adversely affect a listed species." 50 C.F.R. § 402.14 (a)-(b). But where the Forest Service determines that an action "may affect . . . [but is] not likely to . . . adversely affect[]" a listed species, the Forest Service may initiate informal consultation. 50 C.F.R. §§ 402.14(a), 402.12(a). If FWS concurs with the ForestService's determination that a listed species "is not likely to be adversely affected," both agencies have fulfilled their respective obligations and the federal action may proceed. 50 C.F.R. § 402.13(a).
Under the Administrative Procedures Act ("APA"), a Court may "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "without observance of procedure required by law." 5 U.S.C. § 706(2)(A), (D). Where this standard is met, the APA authorizes reviewing courts to "compel agency action unlawfully withheld or unreasonably delayed." Id. at § 706(1).
Under this standard:
[A]n agency must examine the relevant data and articulate a satisfactory explanation for its action. An agency's action is arbitrary and capricious if the agency fails to consider an important aspect of a problem, if the agency offers an explanation for the decision that is contrary to the evidence, if the agency's decision is so implausible that it could not be ascribed to a difference in view or be the product of agency expertise, or if the agency's decision is contrary to the governing law.
Organized Village of Kake v. U.S. Dep't of Agric., 746 F.3d 970, 974 (9th Cir. 2014) (internal citation and quotation marks omitted).
While the APA requires a "thorough, probing, in-depth review" of agency action, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), the standard of review is nonetheless "highly deferential," Nw. Ecosystem All. v.U.S. Fish and Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007). If the court finds the existence of a reasonable basis for the agency's decision, it must presume the validity of, and affirm, the agency action. Id.
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