Cottonwood Envtl. Law Ctr. v. Marten

COTTONWOOD ENVIRONMENTAL LAW CENTER, Plaintiff, v. LEANNE MARTEN, et al., Defendants.

2:20-cv-00031-BU-BMM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION

December 17, 2020

ORDER

INTRODUCTION

Cottonwood Environmental Law Center ("Cottonwood") brought this action against Leanne Marten in her official capacity as Regional Forester of Region One of the U.S. Forest Service ("USFS"), Mary Erickson in her official capacity as Forest Supervisor of the Custer Gallatin National Forest, and USFS. (collectively, "Federal Defendants"). Cottonwood alleges that USFS violated the National Environmental Policy Act ("NEPA") when it failed to supplement the environmental impact statement ("EIS") for the forest plan for the Custer Gallatin National Forest originally adopted in 1987 ("1987 Forest Plan") and for three projects approved under that same plan. (Doc. 3). Cottonwood argues that new information has come to light that would require a supplemental EIS for the forest plan and all three projects. Id.

Cottonwood filed a Motion for Temporary Restraining Order and Preliminary Injunction on September 11, 2020. (Doc. 6). The motion targeted two of the three projects in the original lawsuit. Id. Federal Defendants filed a Motion to Dismiss for Failure to State a Claim on October 2, 2020. (Doc. 14). The Court held a hearing on both motions on November 30, 2020. (Doc. 21).

BACKGROUND

Statutory Background

The National Forest Management Act of 1976 ("NFMA") charges USFS with administering our national forests. 16 U.S.C. § 1600. NFMA contains procedural and substantive requirements for the management of national forests, including that USFS "provide for multiple use and sustained yield of the products and services obtained" from the national forests and "provide for diversity of plant and animal communities . . . in order to meet overall multiple-use objectives." Id. § 1604(e)(1), (g)(3)(B). USFS forest management practices must also comply with other federal environmental laws, such as NEPA, the Endangered Species Act, the Clean Water Act, and the Clean Air Act.

USFS implements its many forest management requirements through the preparation of Land Resource Management Plans (generally called "forest plans")that guide management activities for each national forest. 16 U.S.C. § 1604(f)(1). The forest plan sets high-level, forest-wide goals for USFS management activities. The forest plan does not provide site-specific direction such as where to put a trail or what timber to harvest. See Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 729 (1998) (describing forest plans as general planning tools that establish the overall management direction for a forest). USFS proposes and implements individual projects to build roads, establish trails, or designate cuts that must align with the forest plan in order to achieve such site-specific objectives.

NEPA requires federal agencies to analyze the potential environmental effects of major federal actions. See Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 558 (1978). NEPA also requires federal agencies to disseminate widely their findings on the environmental impacts of their actions. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). NEPA remains a procedural statute, focused on ensuring informed decision-making rather than compelling particular results or imposing substantive obligations on agencies. See id. ("Although [NEPA] procedures are almost certain to affect the agency's substantive decision, it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.").

NEPA operates through the requirement that a federal agency must prepare an environmental impact statement (EIS) as part of any "major Federal actionssignificantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The initial EIS usually proves sufficient, but if the major federal action is ongoing, an agency must supplement that initial NEPA analysis when new significant information arises relating to environmental concerns not considered in the original EIS. See Norton v. S. Utah Wilderness All. ("SUWA"), 542 U.S. 55, 72 (2004); 40 C.F.R. § 1502.9. NEPA requires supplemental analysis only if "there remains 'major Federal actio[n]' to occur." SUWA, 542 U.S. at 73 (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374 (1989)). USFS approval of a forest plan or project each constitute major federal actions that require NEPA analysis. Cf. Native Ecosystems Council v. Krueger, 946 F.Supp.2d 1060 (D. Mont. 2013) (analyzing NEPA analysis prepared for an approved forest plan and project).

Some activities are exempt from NEPA review through so-called categorical exclusion ("CE"). The Healthy Forests Restoration Act ("HFRA") statutorily exempts from NEPA projects within designated areas that are designed to "reduce the risk or extent of, or increase the resilience to, insect or disease infestation" and that meet other specified criteria. 16 U.S.C. §§ 6591b(a)(1), 6591a(d). If a project satisfies HFRA's requirements, it may proceed under the statutory CE without further NEPA review. See Native Ecosystems Council v. Erickson, 330 F. Supp. 3d 1218, 1245 (D. Mont. 2018), aff'd 804 F. App'x 651; Native Ecosystem Council v. Marten, 2018 WL 6046472, at *8 (D. Mont. Nov. 19, 2018).

Factual Background

The Custer Gallatin National Forest encompasses more than three million acres of ecologically diverse landscapes. It includes dense forests, alpine lakes, the tallest peak in Montana, and flat-topped buttes that rise from prairie grassland. USFS adopted the Custer Gallatin National Forest Plan in 1987 ("1987 Forest Plan") along with an accompanying EIS. See USFS, Record of Decision for Land and Resource Management Plan and Environmental Impact Statement for the Custer National Forest and National Grasslands (June 1987). USFS began the process of revising the 1987 Forest Plan in January 2016 in part to account for new research on climate change. This revision includes new NEPA analysis for the revised plan that considers climate change impacts. The revision process remains currently underway. The 1987 Forest Plan governs USFS management of the Custer Gallatin National Forest until that revision concludes.

This case centers on the 1987 Forest Plan and three projects approved under that plan: the Bozeman Municipal Watershed ("BMW") Project, the North Hebgen Project, and the North Bridgers Project. USFS approved the BMW Project on November 29, 2011, when it issued a Supplemental Final EIS ("BMW Project SEIS"). (Doc. 7-14). USFS approved the North Hebgen project on June 29, 2017, when it completed an Environmental Assessment ("EA") and issued a Finding of No Significant Impact ("FONSI") on the environment that required no furtherNEPA analysis. (Docs. 7-5, 7-6). USFS approved the North Bridgers Project under HFRA's statutory CE for insect and disease infestation. (Doc. 14-2); All. for the Wild Rockies v. Marten, 464 F.Supp.3d 1169, 1175 (D. Mont. 2020) (rejecting a NEPA challenge to the North Bridgers Project because USFS approved the project under HFRA's statutory CE).

ANALYSIS

I. Motion to Dismiss

A court must dismiss a complaint that fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, the complaint must contain sufficient 'well-pleaded, nonconclusory factual allegation[s],' accepted as true, to state 'a plausible claim for relief.'" Beckington v. Am. Airlines, Inc., 926 F.3d 595, 604 (9th Cir. 2019) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679-80 (2009)). A plaintiff must state "a claim to relief that is plausible on its face." Ashcroft 556 U.S. at 678. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court also may consider documents "whose contents are alleged in complaint and whose authenticity no party questions, but which are not physically attached to the pleading" when analyzing the adequacy of a complaint. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994).

a. First Claim for Relief

Cottonwood first claims that USFS violated NEPA by failing to prepare supplemental NEPA analysis for the 1987 Forest Plan. (Doc. 3 at 10). Cottonwood argues that either new climate change research or the decision to revise the 1987 Forest Plan itself would constitute new information that would trigger supplemental NEPA analysis. Id.

Cottonwood's first claim fails to present a plausible claim for relief. Forest plans are general land management planning mechanisms that only require NEPA analysis when adopted or amended. NEPA's supplement mandate applies only to ongoing "major Federal actions" where "there remains 'major Federal actio[n]' to occur." SUWA, 542 U.S. at 73 (citing Marsh, 490 U.S. at 374). An ongoing major federal action requires specific actions that an agency will take. See id. The approval of a land use plan, such as a forest plan, represents a major federal action requiring an EIS. See 43 C.F.R. § 1601.0-6 (2017). The federal action at issue would be completed when the USFS approved the plan. No ongoing major federal action exists that could require supplementation of the 1987 Forest Plan based on new information relating to climate change or forest plan revisions. Cf. SUWA, 542 U.S. at 73 (rejecting plaintiff's claim to supplement an agency's land use plan).

Cottonwood justifies its argument that the plan revision announcement requires supplementation of the original 1987 Forest Plan EIS based, in part, onlanguage in SUWA that indicates that "additional NEPA analysis" is required when a land management plan is revised. Id. Cottonwood argues for an interpretation of SUWA that would require an agency to supplement the original land management plan environmental review while also preparing an environmental review for the revised plan. Cottonwood cites no additional legal basis for this assertion and cannot...