Sawtooth Mountain Ranch LLC v. United States, Case No. 1:19-cv-0118-CWD

CourtU.S. District Court — District of Idaho
Writing for the CourtHonorable Candy W. Dale United States Magistrate Judge
PartiesSAWTOOTH MOUNTAIN RANCH LLC, LYNN ARNONE, and DAVID BOREN, Plaintiffs, v. UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF AGRICULTURE; SONNY PERDUE, Secretary of Agriculture; UNITED STATES FOREST SERVICE; SAWTOOTH NATIONAL FOREST; JIM DEMAAGD, Forest Supervisor; SAWTOOTH NATIONAL RECREATION AREA; KIRK FLANNIGAN, Area Ranger; FEDERAL HIGHWAY ADMINISTRATION, Defendants.
Docket NumberCase No. 1:19-cv-0118-CWD
Decision Date30 June 2020

SAWTOOTH MOUNTAIN RANCH LLC,
LYNN ARNONE, and DAVID BOREN, Plaintiffs,
v.
UNITED STATES OF AMERICA;
UNITED STATES DEPARTMENT OF AGRICULTURE;
SONNY PERDUE, Secretary of Agriculture; UNITED STATES FOREST SERVICE;
SAWTOOTH NATIONAL FOREST; JIM DEMAAGD, Forest Supervisor;
SAWTOOTH NATIONAL RECREATION AREA; KIRK FLANNIGAN, Area Ranger;
FEDERAL HIGHWAY ADMINISTRATION, Defendants.

Case No. 1:19-cv-0118-CWD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

June 30, 2020


MEMORANDUM DECISION AND ORDER RE: PLAINTIFFS' SECOND MOTION FOR PRELIMINARY INJUNCTION
(DKT.
62)

INTRODUCTION

Pending before the Court is a second expedited motion for a preliminary injunction filed by Plaintiffs Sawtooth Mountain Ranch LLC, Lynn Arnone, and David Boren against Defendants. (Dkt. 62.) Plaintiffs again challenge the approval of and any actions associated with the proposed Stanley to Redfish Trail ("Stanley/Redfish Trail" or

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"Trail"), as described in the Decision Memo signed by Kirk Flannigan on June 6, 2017, and seek to halt construction. This motion is premised upon claims asserted under the Environmental Species Act and the Clean Water Act, first alleged in Plaintiffs' Second Amended Complaint filed on May 8, 2020. (Dkt. 59, 50.)

The parties had a full and fair opportunity to provide briefing supported by several declarations. (Dkt. 62, 66.) Defendants submitted also the Amended Administrative Record (AR), and Plaintiffs filed supplemental materials.1

The Court conducted a video hearing on June 19, 2020, at which the parties appeared and presented their arguments.2 After carefully considering the parties' arguments, written memoranda, exhibits, the Amended Administrative Record, and relevant case law, and for the reasons that follow, the Court will deny the motion for preliminary injunction. The Court is not persuaded on the present record that Plaintiffs have demonstrated a likelihood of success on the merits of either their Environmental Species Act claim or their Clean Water Act claim.

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FACTUAL BACKGROUND3

Redfish Lake and Little Redfish Lake are popular summer destinations located within the Sawtooth National Recreation Area (SNRA) six miles south of the town of Stanley. AR 1127. Visitation to the City of Stanley and the Redfish Lake area occurs primarily between mid-June to Labor Day. AR 0992. During that time, the Redfish Lake Recreation Complex, with its seven campgrounds, boat ramp, rustic lodge and cabins, and day-use facilities serve up to 2,200 people and becomes the largest community in the otherwise sparsely populated area. AR 1127. State Highway 75 connects Redfish Lake to Stanley, with high speed traffic and heavy traffic volumes. AR 1128. There currently is no alternative transportation route connecting Stanley and Redfish Lake, although a snowmobile trail connects the two areas during the winter. AR 1128, 1126.

In the early to mid-1990's, SNRA staff began discussing the idea of constructing a trail connecting Stanley and Redfish Lake to provide an alternate means of travel between the two areas. AR 1126. At that time, the Forest Service envisioned a trail that would provide non-motorized travel, and serve pedestrians, bicyclists, and equestrians. AR 0938. In 2005, the Forest Service purchased a 30-foot-wide "Public Trail Easement"

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from the prior owners of Plaintiffs' Property4 to connect the proposed trail route between Stanley and Redfish Lake. AR 0698.

In 2012, the Forest Service initiated internal scoping, see, e.g., AR 1126, and in early 2014, began external scoping to solicit feedback on the proposed trail project. AR 0921. During the scoping process, public feedback was received in several ways, through surveys circulated by the City of Stanley and the Forest Service, at a public meeting attended by approximately 25 people, and through sixteen (16) written comments. Decision Memo at 9-10. AR 0296 - 0304. Survey results indicated "overall public opinion is greatly in support of a trail between Stanley and the Redfish Lake area." AR 1048. The Stanley/Redfish Trail is supported by the City of Stanley, the Idaho Conservation League, the Sawtooth Association, the Stanley-Sawtooth Chamber of Commerce, and the Idaho Department of Transportation. Phillips Decl. ¶¶ 8-12 and Exs. C-F. (Dkt. 17-2.) Brief of Amicus Curiae. (Dkt. 18.)

The Forest Service's internal and external scoping involved analyzing the potential effects of trail construction on species listed as threatened or endangered under the Endangered Species Act. On April 16, 2014, the Forest Service completed its biological assessment and evaluation of the effects of the Stanley/Redfish Trail on terrestrial

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wildlife species. AR 2612. The Forest Service concluded the Trail may affect, but would not likely adversely affect, the Canada lynx. AR 2612 - 2639. The United States Fish and Wildlife Service (FWS) concurred. AR 0254 - 0255.

On April 14, 2014, Mark Moulton, the SNRA hydrologist and fisheries and watershed program manager, completed a biological assessment (BA) addressing the effects of the Stanley/Redfish Trail upon listed aquatic species, identified as Snake River sockeye, Snake River spring and summer chinook, Snake River steelhead, Columbia River bull trout, and westslope cutthroat trout. AR 2551 - 2606; 0238 - 0245; Decl. of Mitchell ¶ 3. (Dkt 66-8 at 2.) The BA identified three segments of the proposed trail that would intersect riparian conservation areas (RCAs). AR 0244, 2596. The first segment, located on the Property, would "cross a minor, essentially isolated, seasonally wet area." AR 0244, 2596.

The second segment impacting an RCA, located on national forest service land, was described similarly, but was noted as having existing fill associated with a former roadway. AR 0244, 2596. "Both of the wet segments are non-forested, and are separated from critical habitat in the Salmon River by substantial distance, complex wetlands, and Highway 75. This isolation would preclude any measurable influence to the RCA of the Salmon River." AR 0244, 2596. The third segment intersecting an RCA would pass through the RCA "near the confluence of Redfish Lake Creek and the Salmon River," and would "follow the existing treads of a former roadway and the Rock Shelter

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interpretive trail, and cross Redfish Lake Creek on the existing footbridge." AR 0244, 2596.

In sum, the BA describes the trail as follows:

The trail would be non-motorized, with lengthy segments established on existing treads of former roadways. With only a few short exceptions, the proposed trail would also reside on dry, gentle, terrain far from habitats utilized by the species considered here. The intended practices, gentle terrain, and substantial typical separation from habitats would preclude any measurable influence to individuals of the species consider [sic] here, or their designated critical habitat. Where 3 short trail segments would intersect RCAs, either the segments are isolated from critical habitat with minimal construction activities anticipated, or the crossings already exist.

AR 0244, 2596. The BA concludes the Trail will have "no effect" on individual fish species or their designated critical habitat. AR 2597. The fisheries biologist for the National Marine Fisheries Service (NMFS) concurred. Mitchell Decl. ¶ 5. (Dkt. 66-8.)

The Administrative Record contains also information regarding wetlands found on the Property. Prior to the Government's purchase of the Public Trail Easement, a wetland and floodplain assessment of the Property was prepared. In October of 2003, a reconnaissance level inventory of wetlands existing on the Property was conducted. A report dated February 20, 2004, identified the wetlands based on hydrophytic vegetation, hydric soils, and evidence of wetland hydrology. AR 0591. Wetlands were then mapped. AR 0591. According to the survey, the predominant classification of wetlands on the Property is PEMC based upon the U.S. Fish and Wildlife Classification system. Wetland

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extent is affected by "irrigation activities that regularly occur on the site....some areas would likely convert to upland if irrigation is discontinued." AR 0591.

In February of 2014, the Forest Service sought scoping comments from the Department of the Army Corps of Engineers regarding the Stanley/Redfish Trail. AR 0251. The Corps responded that the development of recreational trails may require an authorization for the discharge of dredged or fill material into waters of the United States, including wetlands, and informed the Forest Service that the proposed project area for the Stanley/Redfish Trail may require a permit. AR 0251 - 52.

After completing internal and external scoping and reviewing public comments, the Forest Service issued a Decision Memo on June 6, 2017, authorizing construction of the Stanley/Redfish Trail. AR 0296 - 0304. The Decision Memo indicated also that the impacts to wetlands would be consistent with Executive Order 11990.5 AR 0301.

In or about August of 2017, and in partnership with the Forest Service, the Western Federal Lands Highway Division (FHWA) lead the Clean Water Act permitting effort. Chariarse Decl. ¶¶ 2-3. (Dkt. 66-11.) Jennifer Chariarse, Senior Technical Environmental Specialist for the FHWA, Western Division, was assigned to the trail project. Id. ¶ 2. Chariarse attended a scoping trip in September of 2017, completed a wetland and waters delineation, and in January of 2018, prepared a permit application for submittal to the United States Army Corps of Engineers for the CWA Section 404

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permitting process. Id. ¶ 4. (Dkt. 66-11). SAW0086.6 The application requested concurrence from the Corps that a nationwide permit applied to the Stanley/Redfish Trail project. SAW0087. The application explained that the Trail "crosses through five small wetland areas in an area of the trail that is located within the US Forest Service-owned easement on private land." SAW0091. On February 2, 2018, the Corps verified that...

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