Resources Ltd., Inc. v. Robertson

• Decision Date: 06 November 1991
• Docket Number: No. CV 89-41-H-CCL.,CV 89-41-H-CCL.
• Parties: RESOURCES LIMITED, INC., a nonprofit corporation; Swan View Coalition, Inc., a non-profit corporation; Friends of the Wild Swan, a non-profit corporation; Five Valleys Audubon Society, a non-profit organization; and Sierra Club, a non-profit corporation, Plaintiffs, v. F. Dale ROBERTSON, in his capacity as Chief of the United States Forest Service, Department of Agriculture; John Mumma, in his official capacity as Regional Forester, Region One, of the United States Forest Service; and Edgar B. Brannon, Jr., in his official capacity as Forest Supervisor, Flathead National Forest, Defendants, and Intermountain Forest Industry Association, Defendant-Intervenor.
• Court: U.S. District Court — District of Montana

789 F. Supp. 1529

RESOURCES LIMITED, INC., a nonprofit corporation; Swan View Coalition, Inc., a non-profit corporation; Friends of the Wild Swan, a non-profit corporation; Five Valleys Audubon Society, a non-profit organization; and Sierra Club, a non-profit corporation, Plaintiffs, v. F. Dale ROBERTSON, in his capacity as Chief of the United States Forest Service, Department of Agriculture; John Mumma, in his official capacity as Regional Forester, Region One, of the United States Forest Service; and Edgar B. Brannon, Jr., in his official capacity as Forest Supervisor, Flathead National Forest, Defendants, and Intermountain Forest Industry Association, Defendant-Intervenor.

No. CV 89-41-H-CCL.

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

November 6, 1991.

COPYRIGHT MATERIAL OMITTED

Jon Heberling, McGarvey, Heberling, Sullivan & McGarvey, Kalispell, Mont., Douglas Honnold, Fern L. Shepard, Rolf G. Asphaug, Andrew Caputo, Sierra Club Legal Defense Fund, Denver, Colo., Daniel J. Rohlf, Portland, Or., and James Goetz, Bozeman, Mont., for plaintiffs.

Peter Van Tuyn, Gary B. Randall, Wells D. Burgess, Gregory D. Page, U.S. Dept. of Justice, Washington, D.C., Bob Brooks, Asst. U.S. Atty., Butte, Mont., John D. Mudd, Missoula, Mont., and Steven P. Quarles, Crowell & Morning, Washington, D.C., for defendants.

OPINION AND ORDER

LOVELL, District Judge.

This matter came on for hearing on May 29, 1991, on cross motions for summary judgment. Plaintiffs Resources Limited, Swan View Coalition, Friends of the Wild Swan, Five Valleys Audubon Society, and the Sierra Club filed suit challenging the Flathead National Forest Land and Resource Management Plan (Forest Plan) and its accompanying Environmental Impact Statement (EIS) issued by the United States Forest Service. Plaintiffs attack the adequacy of the 1985 Forest Plan and the two-volume Environmental Impact Statement prepared on the plan. Plaintiffs originally filed a twelve count complaint, alleging various violations of the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), and the Endangered Species Act (ESA). Subsequently, counts five and six of the complaint were dismissed without prejudice pursuant to the stipulation of the parties. Therefore, currently before the court are counts one through four and counts seven through twelve.

In count one of its first amended complaint, Plaintiffs state that the Forest Service is charged with the responsibility of ensuring that its actions are not likely to jeopardize species listed under the Endangered Species Act as provided by 16 U.S.C. § 1536(a)(2). Plaintiffs allege that the Forest Service, in discharging its obligation under the Endangered Species Act, failed to use the best scientific and commercial data available pursuant to 16 U.S.C. § 1536(a)(2). Plaintiffs also claim under count one that the Forest Service failed to ensure that its decision to approve and implement the Flathead Forest Plan was not likely to jeopardize listed species in that the Forest Service failed to obtain and consider a comprehensive biological opinion detailing how the decision to implement the plan would affect threatened and endangered species.

In counts two, three, and four, Plaintiffs allege various violations affecting water quality and fisheries. Count two charges that since the Flathead Forest Plan, which provides for a ten-year timber sale program, is a major federal action significantly affecting the quality of the human environment, an adequate EIS disclosing the impacts of the Forest Plan and the ten-year timber sale program is required. Plaintiffs allege that the Forest Plan EIS does not adequately disclose the sedimentation impacts of the Forest Plan and the ten-year timber sale program on water quality and the fishery resources of the Flathead National Forest streams in violation of the National Environmental Policy Act and its implementing regulations. Count three alleges that the Forest Service does not adequately disclose in its Forest Plan EIS the sedimentation impacts of the Forest Plan and the ten-year timber sale program on water quality and fishery resources in violation of 36 C.F.R. § 219.23. Count four alleges that the Forest Service has not analyzed in detail the mitigation measures adopted by it to protect and improve water quality in the fishery resources or explain how the mitigation measures will be effective.

Counts seven through eleven each relate in some manner to the selection of alternatives under the plan and particularly focus on the timber management proposed under the plan. Count seven alleges that the Flathead Forest Plan fails to demonstrate that clearcutting is the optimum timber harvest method for any of the proposed timber sales on the Flathead National Forest, while count eight charges that the Forest Service failed to describe the timber sale program in appropriate written materials, including maps and other descriptive materials in violation NFMA. Count nine alleges that the Forest Service failed to include an alternative in the plan EIS, featuring selection management as a method of timber harvest in approximately more than one-fifth of the proposed timber sales under the plan. Count ten claims that the Forest Service placed unreasonable constraints on the FORPLAN computer program which the Forest Service used to determine various output levels for resource uses on the Flathead Forest. Specifically, Plaintiffs claim that the Forest Service, as a result of "unreasonable constraints," failed to reflect the full range of commodity and environmental resource uses and values that could be produced from the forest and, as well, failed to present cost-efficient alternatives, and failed to provide a true comparison between alternatives. Count eleven also attacks the use of the FORPLAN computer program by claiming that the Forest Service made unreasonable assumptions regarding the data used in the program. Plaintiffs claim that the Forest Service assumed unrealistically high timber yields and price trends while assuming that timber harvest costs would not increase in future years. Finally, count twelve alleges that the Forest Service's EIS prepared on the Forest Plan contains insufficient information on an analysis of impacts of the Forest Plan and ten-year timber sale program on grizzly bear and gray wolf habitat in violation of NEPA and its implementing regulations.

Plaintiffs request the following relief from the court:

(1) that the court declare the Forest Service actions are unlawful and in violation of the ESA, NEPA, and NFMA; (2) that the court set aside the Forest Plan and EIS and require the Forest Service to prepare a revised Forest Plan and EIS in compliance with the ESA, NEPA, and NFMA; (3) that the court set aside the Forest Service's determination that the Forest Plan is not likely to jeopardize the continued existence of listed species within the Flathead National Forest Service and require the Forest Service to reinitiate formal consultation with the Fish and Wildlife Service to determine whether the plan is likely to jeopardize the continued existence of threatened and/or endangered species; (4) that the court declare unlawful any further road construction, road reconstruction, or even-aged timber management practices within the Flathead National Forest in grizzly bear habitat, gray wolf habitat, as well as above spawning and rearing habitat for bull trout and west slope cutthroat trout until such time as the Forest Service has fully complied with the ESA, NEPA, and NFMA and their implementing regulations; and (5) that the court preliminarily and permanently enjoin the Forest Service from any further road construction, road reconstruction, and even-age timber management practices within grizzly bear habitat, gray wolf habitat, as well as above any spawning and rearing habitat for the bull trout and west slope cutthroat trout until such time as the Forest Service has complied with the ESA, NEPA, and NFMA.

After reviewing the arguments of the parties and the briefs filed in response to these motions, the court is prepared to rule.

BACKGROUND

Throughout the 1980s, the United States Forest Service conducted forest planning pursuant to the National Forest Management Act for the 2.3 million acre Flathead National Forest. A draft EIS addressing the effects of potential alternative forest plans and a draft plan were released for public comment in 1983. The Forest Service considered the public comments and thereafter issued a final EIS which addressed the effects of seventeen alternative forest plans. A final plan was issued in December of 1985. In January of 1986, the Regional Forester selected alternative # 17 as the Flathead Forest Plan. He found this alternative "maximizes net public benefit" by providing a balance among conflicting multiple use objectives. Among the objectives of the plan are offering enough timber to support "Flathead County's largest basic industry"; recommending over 98,000 acres of roadless areas for classification as wilderness by Congress; providing management prescriptions to protect and enhance habitat for grizzly bear, gray wolf, bull and cutthroat trout, and other species; and maintaining a wide range of recreational opportunities.¹

Various environmental groups, who are now plaintiffs in this suit, filed three administrative appeals with the Chief of the Forest Service. All appeals were decided by the fall of 1988, and the environmental plaintiffs, dissatisfied with the decision by the Chief, filed suit in this court February 23, 1989. A first amended complaint was filed on October 6, 1989. Defendant-Intervenor Inland Forest Industries Association, which represents major purchasers of timber in the Flathead Valley and which had been an intervenor in the administrative appeals process, was permitted to intervene by this court on March 5, 1990.

STANDING

Defendant Forest Service, as well as Defendant-I...