Wildwest Institute v. Bull, No. CV 06-66-M-DWM.

• Decision Date: 22 December 2006
• Docket Number: No. CV 06-66-M-DWM.
• Citation: 468 F.Supp.2d 1234
• Parties: WILDWEST INSTITUTE and Friends of the Bitterroot, Plaintiffs, v. Dave BULL, Forest Supervisor for the Bitterroot National Forest; Abigail Kimbell, Regional Forester of Region One of the U.S. Forest Service; United States Forest Service, an agency of the U.S. Department of Agriculture State of Montana, Department of Fish, Wildlife & Parks, Defendants, and Bitterroot Resource Conservation and Development Area, Inc., Ravalli County, Sula Volunteer Fire Dept., Robert Wetzsteon, Becki Linderman, and Rocky Mountain Log Homes, Defendant-Intervenors.
• Court: U.S. District Court — District of Montana

468 F.Supp.2d 1234

WILDWEST INSTITUTE and Friends of the Bitterroot, Plaintiffs, v. Dave BULL, Forest Supervisor for the Bitterroot National Forest; Abigail Kimbell, Regional Forester of Region One of the U.S. Forest Service; United States Forest Service, an agency of the U.S. Department of Agriculture State of Montana, Department of Fish, Wildlife & Parks, Defendants, and Bitterroot Resource Conservation and Development Area, Inc., Ravalli County, Sula Volunteer Fire Dept., Robert Wetzsteon, Becki Linderman, and Rocky Mountain Log Homes, Defendant-Intervenors.

No. CV 06-66-M-DWM.

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

December 22, 2006.

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Thomas J. Woodbury, Forest Defense, Missoula, MT, for Plaintiffs.

Lori Caramanian, U.S. Department of Justice, Denver, CO, Victoria L. Francis, Office of the U.S. Attorney, Billings, MT, for Defendants.

George H. Corn, Office of the Ravalli County Attorney, Hamilton, MT, Julie A. Weis, Haglund Kelley Horngren Jones & Wilder, Portland, OR, for Defendant-Intervenors.

ORDER

MOLLOY, Chief Judge.

I. Introduction

Wildwest Institute and Friends of the Bitterroot challenge the United States Forest Service's approval of the Middle East Fork Project (the "Project"), a hazardous fuel reduction project on the Bitterroot National Forest ("BNF"). Plaintiffs raise claims under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600 et seq., and the Healthy Forest Restoration Act ("HFRA"), 16 U.S.C. §§ 6501 et seq. Before the Court are the Parties' cross-motions for summary judgment and Plaintiffs' motions to supplement the administrative record. For the reasons stated below, I find in favor of the Forest Service and the Intervenors and reject the claims of the Plaintiffs.

II. Factual and Procedural Background

The Project was approved under the authority of the Healthy Forest Restoration Act of 2003. HFRA strives to, inter alia, "reduce wildfire risk to communities, municipal water supplies, and other at-risk Federal land through a collaborative process of planning, prioritizing, and implementing hazardous fuel reduction projects." 16 U.S.C. § 6501(1). It authorizes implementation of hazardous fuel reduction projects as soon as practicable on federal land in wildland-urban interface areas and federal land threatened by an epidemic of disease or insects. Id. § 6512(a)(1), (4). The 25,800 acre Project analysis area is located in Ravalli County two miles east of Sula, Montana. Ninety-one percent of the treatments included in the Project are in the wildland-urban interface. ROD at 5. Long-standing fire suppression and a boom in Douglas-fir bark beetle populations have created a high risk for intense fire in the Project area. The Project is designed to (1) reduce wildland fire threats to the Middle East Fork community, (2) restore fire-adapted ecosystems in the Middle East Fork landscape, and (3) restore stands affected by the Douglas-fir bark beetle epidemic by treating infested areas and lands at imminent risk of spread to promote healthy ecosystem function, composition, and structure. FEIS at 1-5.

The Forest Service analyzed three alternatives for the Project: a no action alternative (Alternative 1), the Forest Service's proposed alternative (Alternative 2), and an alternative proposed by Plaintiffs (Alternative 3). FEIS Summary at 7-14. Alternative 2 envisioned treatment on 6,472 acres to reduce fuels and change stand structure. FEIS Summary at 8-11. Alternative 3 proposed to reduce fuels only within a 400 meter radius of structures, for a total treatment area of 1,063 acres. FEIS Summary at 12-14. The Draft Environmental Impact Statement ("DEIS") was published on April 20, 2005. The Forest Service took public comments until June 13, 2005. The Final Environmental Impact Statement ("FEIS") was released on September 22, 2005, and the Record of Decision ("ROD") was issued in March 2006. The alternative selected in the ROD was a modified version of Alternative 2 ("Modified Alternative 2"). Modifications included (1) eliminating treatments in units containing old growth habitat; (2) dropping Project units with greater than 15% detrimental soil disturbance and units likely to have greater than 15% detrimental soil disturbance after proposed treatments; and (3) postponing a decision on treatment in units where further field review was necessary to determine whether past harvest had occurred. ROD at 11. These modifications were adopted in response to extensive public comment. ROD at 11. The selected Modified Alternative 2 will treat approximately 4,938 acres with approximately 2,893 acres of commercial logging. ROD at 4, 10.

After the ROD was issued, Plaintiffs brought suit challenging the Forest Service's approval of the Project. Plaintiffs' Complaint states seven claims for relief. First, Plaintiffs allege the Forest Service irretrievably committed resources by marking trees for harvest before reaching a final decision on the Project in violation of NEPA. Second, Plaintiffs claim the Forest Service failed to facilitate collaboration with the public in the decision-making process as required by NEPA and HFRA. Plaintiffs request that the Court remedy this violation by starting the HFRA process anew and requiring a specified number of public meetings. Third, Plaintiffs allege the Forest Service manipulated and/or failed to disclose the data and opinions of its own soils scientist, Ken McBride, in the FEIS in violation of NEPA. Fourth, Plaintiffs assert the Forest Service failed to properly monitor and analyze soil productivity in violation of NEPA and NFMA. Fifth, Plaintiffs claim the Forest Plan's minimum old growth requirement is not supported by best science and the Project does not meet old growth standards. Sixth, Plaintiffs allege Defendants Dave Bull and Abigail Kimbell abused their discretion while acting in a quasi-judicial capacity by adjudicating objections to the Project and then approving the Project. Plaintiffs request that the Court require the Project to be approved by a neutral arbitrator or a forest supervisor outside of Region 1 to remedy this violation. Finally, Plaintiffs claim the Project will increase sedimentation in an already degraded watershed in violation of NFMA.

Plaintiffs moved to preliminary enjoin implementation of the Project on April 26, 2006. In seeking preliminary injunctive relief, Plaintiffs relied exclusively on their first three claims for relief (the "procedural claims"). This Court denied Plaintiffs' motion on June 30, 2006, concluding Plaintiffs had not met the requisite standard of demonstrating likelihood of success on the merits and irreparable harm. This Court's decision was affirmed by the Ninth Circuit on November 29, 2006.

Plaintiffs now move for summary judgment on the merits. In their opening brief, Plaintiffs merely mention their procedural claims. Plaintiffs state, "[a]s this court has already entertained and preliminarily rejected many of Wild West's procedural arguments, this brief will just summarize those arguments as necessary to preserve them for appeal ...." Plfs.' Summary Judgment Brief, at 4. As discussed more fully below, however, a brief summary of Plaintiffs' procedural claims is insufficient to warrant review of those claims by this Court or on appeal. See Howard v. Everex Sys., Inc., 228 F.3d 1057, 1069 n. 18 (9th Cir.2000) (concluding failure to provide any legal argument in support of a contention waived the argument); Monetary II Ltd. P'ship v. I.R.S., 47 F.3d 342, 347 (9th Cir.1995) (noting "[a]s a general rule, an appellate court will not consider arguments which were not first raised before the district court, absent a showing of exceptional circumstances"). Review by this Court of a party's claims serves as more than merely a box to be checked off on the party's Notice of Appeal; it is designed to maximize the potential for obtaining correct results. Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1154 (9th Cir.2000). As the Ninth Circuit has noted, our tiered system of federal courts "assumes that consideration of an issue at both the trial court and appellate court level is more likely to yield the correct result, because the issue will be more fully aired and analyzed by the parties, because more judges will consider it, and because trial judges often bring a perspective to an issue different from that of appellate judges." Ecological Rights Found., 230 F.3d at 1154. Plaintiffs' failure to provide sufficient analysis and legal authority supporting their procedural claims precludes this Court from undertaking an initial analysis of, and providing its own unique perspective on, those claims. See id.; cf. United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) ("Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.").¹ In my view, an already strained administrative process becomes nearly unworkable when claims or defenses are made that ignore the record and that provide little or no citation to it or to legal authority. It creates the appearance that all a disgruntled participant needs to do is go through the motions until it is time for appeal to the Circuit. The system Congress intended will falter, if not fail, if that is truly the way it works. I think not and in some respects this case shows why.

III. Standards of Review

Summary judgment is proper if "the pleadings, depositions, answers to interrogatories and admissions on...