Alliance for the Wild Rockies v. Munoz

590 F.Supp.3d 1308

ALLIANCE FOR THE WILD ROCKIES, et al., Plaintiffs,

v.Michael MUNOZ, in his capacity as Rocky Mountain District Ranger for the Helena-Lewis and Clark National Forest, et al., Defendants.

CV-21-46-GF-BMM

United States District Court, D. Montana, Great Falls Division.

Signed March 8, 2022

Laura King, Attorney at Law, Montana City, MT, for Plaintiffs.

Krystal-Rose Perez, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER

Brian Morris, Chief District Judge

INTRODUCTION

Plaintiffs Alliance for the Wild Rockies and Native Ecosystems Council (collectively "Alliance for the Wild Rockies") have moved for summary judgment. (Doc. 17). Defendants Bill Avey, Michael Munoz, and the United States Forest Service (collectively "the Forest Service") oppose this motion and have filed a cross-motion for summary judgment. (Doc. 27).

FACTUAL AND LEGAL BACKGROUND

The Forest Service authorized the Elk Smith Project on January 26, 2021, and issued a Finding of No Significant Impact. (Doc. 25 at 3). The Forest Service designed the Elk Smith Project to remedy damage done to the Helena-Lewis and Clark National Forest by a high intensity fire in 1988 ("the Canyon Creek fire"). Id. The Elk Smith Project addresses fuel accumulation in the Bear-Marshall-Scapegoat-Swan Inventoried Roadless Area ("the Roadless Area") which surrounds the Bob Marshall Wilderness Complex. (Doc. 17-1 at 5).

The Elk Smith Project proposes to improve conditions for fire management and reduce the risk of high-intensity, high-severity wildfires by using prescribed burning on 15 units that cover 10,331 acres in patches of 20 to 100 acres. (Doc. 25 at 4). The Elk Smith Project also proposes to treat 5 of the 15 units by hand-slashing small conifers, no larger than 7 inches in diameter-at-breast-height, prior to burning. Id. The Elk Smith Project does not involve any commercial sale of timber. Id. at 6.

The Forest Service designates Inventoried Roadless Areas ("IRAs") pursuant to 36 C.F.R. § 294.11. Id. The Roadless Area Conservation Rule ("the Roadless Rule"), promulgated by the Department of Agriculture in 2001, controls the circumstances under which cutting IRA timber is permissible. Id. Timber cutting is prohibited in an IRA except under the following circumstances:

(1) The cutting, sale, or removal of generally small diameter timber is needed for one of the following purposes and will maintain or improve one or more of the roadless area characteristics as defined in § 294.11.

(i) To improve threatened, endangered, proposed, or sensitive species habitat; or

(ii) To maintain or restore the characteristics of ecosystem composition and structure, such as to reduce the risk of uncharacteristic wildfire effects, within the range of variability that would be expected to occur under natural disturbance regimes of the current climatic period;

(2) The cutting, sale, or removal of timber is incidental to the implementation of a management activity not otherwise prohibited by this subpart

36 C.F.R. § 294.13(b) (2005).

The Forest Service published a Preliminary Environmental Assessment ("Draft EA") on the Elk Smith Project for comment in August 2016. Id. at 7. Alliance for the Wild Rockies submitted comments on the Draft EA. Id. Alliance for the Wild Rockies argued that: the draft EA failed to "address why this proposal does not violate the [Roadless Rule]. There are two serious problems with compliance with this Rule, the first being management to reduce natural fires in IRAs, and the second the planned destruction of habitat for 2 threatened species within the IRA." Id. Alliance for the Wild Rockies went on to comment "the Forest Service has fallen far short of demonstrating that the proposed burning is needed to restore unnatural conditions. We believe this project is a clear violation of the [Roadless Rule], and should not go forward." Id.

The Forest Service published the Final Environmental Assessment ("Final EA") for comment in April 2019. Id. Alliance for the Wild Rockies again submitted an objection letter. Id. at 9–10. The Forest Service signed a Decision Notice in November of 2019. Id. at 7. In the Final EA, the Forest Service relied on an exception to the Roadless Rule that allows cutting "small diameter" trees to reduce "the risk of uncharacteristic wildfire effects." (Doc. 17-4 at 6); see 36 C.F.R. § 294.13(b)(1)(ii) (2005).

Alliance for the Wild Rockies filed a lawsuit in April 2020 challenging the Forest Service's reliance on the 36 C.F.R. § 294.13(b)(1)(ii) exception. (Doc. 17-4 at 6). The Deciding Official withdrew the Decision Notice on June 10, 2020, to conduct additional analysis. (Doc. 25 at 7). Alliance for the Wild Rockies asserts that the Forest Service withdrew the final EA in response to its lawsuit. (Doc. 17-1 at 14).

The Forest Service published a Final Supplemental Environmental Assessment ("Supplemental EA") in September 2020. (Doc. 25 at 7). The Supplemental EA "clarifie[d] the 2001 Roadless Rule Exception that allows the project." (Doc. 17-4 at 7 (quoting Elk Smith-0023225)). The Supplemental EA relies on 36 C.F.R. § 294.13(b)(2) ("the subsection (b)(2) exception") to categorize the Elk Smith Project timber cutting as "incidental" to the fire control efforts. Id. Alliance for the Wild Rockies once again objected. (Doc. 24 at 9). The Forest Service signed its final decision approving the Elk Smith Project in January 2021. (Doc. 17-4 at 7).

Alliance for the Wild Rockies filed suit in this Court in April 2021 under the Administrative Procedure Act ("APA"). (Doc. 1). Alliance for the Wild Rockies seeks a declaratory judgment that the Forest Service's plan for tree cutting in the Roadless Area violates the APA, the National Environmental Policy Act ("NEPA"), and the Roadless Rule. Id. at 14–15. Alliance for the Wild Rockies asks the Court to vacate the Elk Smith Project decision or enjoin its implementation. Id. at 15.

LEGAL STANDARDS

The Court shall grant summary judgment if the movant shows that no genuine dispute exists as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

Courts review agency decisions under the Roadless Rule under the standards set out in the Administrative Procedure Act ("APA"), and "must set aside agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Idaho Sporting Cong., Inc. v. Rittenhouse , 305 F.3d 957, 964 (9th Cir. 2002) (citing 5 U.S.C. § 706 ).

DISCUSSION

The sole issue presented by this case is whether the timber cutting proposed by the Elk Smith Project violates the Roadless Rule. No factual issues remain at play, and, therefore, summary judgment proves appropriate. The Forest Service also argues, as a threshold matter, that Alliance for the Wild Rockies failed to raise this claim during the administrative process and therefore it cannot pursue the claim in this Court. The Court will address the Forest Service's argument before addressing the merits.

I. Whether Alliance for the Wild Rockies is precluded from raising its claim in this Court.

"[C]laims raised at the administrative appeal and in the federal complaint must be so similar that the district court can ascertain that the agency was on notice of, and had an opportunity to consider and decide, the same claims now raised in federal court."

Native Ecosystems Council v. Dombeck , 304 F.3d 886, 899 (9th Cir. 2002). General comments do not suffice because the connection between the concerns expressed during an administrative proceeding and the issues raised in court cannot be "too attenuated." Great Basin Mine Watch v. Hankins , 456 F.3d 955 (9th Cir. 2006).

The Forest Service argues that Alliance for the Wild Rockies failed to adequately identify its concerns during the administrative process, and, therefore, has waived its claim. (Doc. 24 at 18). The Forest Service categorizes Alliance for the Wild Rockies's complaint that the Elk Smith Project violated the Roadless Rule as a "general comment," and asserts that, to put the Forest Service on notice of its claim, Alliance for the Wild Rockies must have complained that the proposed timber cutting does not fit within the subsection (b)(2) exception as it now does in its summary judgment brief. (Doc. 24 at 19).

The Forest Service argues first that Alliance for the Wild Rockies has waived its claim by virtue of submitting an overbroad comment. The Forest Service further argues the perceived lack of clarity in Alliance for the Wild Rockies's comments constitutes failure to exhaust administrative remedies. See Idaho Sporting Cong., Inc. v. Rittenhouse , 305 F.3d 957, 965 (9th Cir. 2002). The Forest Service misapprehends the level of clarity with which Alliance for the Wild Rockies needed to articulate its objection to the Elk Smith Project. Claimants must raise their problems with sufficient clarity to provide the Forest Service with a fair opportunity to rule. Claimants may meet this requirement "using general terms rather than specific legal arguments." All. for Wild Rockies v. Kruger , 950 F. Supp. 2d 1172, 1189 (D. Mont. 2013).

Alliance for the Wild Rockies raised its objections to the planned project at every opportunity, clarifying that it believed the tree cutting violated the Roadless Rule. See (Doc. 25 at 8). The Forest Service argues that Alliance for the Wild Rockies "vaguely" asserted its objections "without explaining why they maintain that tree cutting within an IRA would violate the Roadless Rule." (Doc. 24 at 19). The Roadless Rule clearly prohibits timber cutting. See 36 C.F.R. § 294.13(a) ("Timber may not be cut, sold, or removed in inventoried roadless areas of the National Forest System, except as provided in paragraph (b) of this section."). The Forest Service, not Alliance for the Wild Rockies, bears the burden of justifying timber cutting in an IRA when administrative law generally prohibits it. The Forest Service did so by "clarifying" in the Supplemental EA under which...