Ctr. for Biological Diversity v. U.S. Forest Serv.

687 F.Supp.3d 1053

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,andAlliance for the Wild Rockies and Native Ecosystems Council, Consolidated Plaintiffs, v. U.S. FOREST SERVICE, et al., Defendants,Kirsten Kaiser, District Ranger, Kootenai National Forest,Three Rivers Ranger District, et al., Consolidated Defendants,

and

Kootenai Tribe of Idaho, Defendant-Intervenor.

Lead Case No. CV 22-114-M-DWM

Member Case No. CV 23-3-M-DWM

United States District Court, D. Montana, Missoula Division

Signed August 17, 2023

Rebecca Kay Smith, Public Interest Defense Center, Missoula, MT, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, for Plaintiff in CV 23-3.

Hayley A. Carpenter, Caitlyn Faye Cook, Wildlife & Marine Resources Section, Washington, DC, John P. Tustin, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants in CV 23-3.

Julie A. Weis, Pro Hac Vice, Haglund Kelley LLP, Portland, OR, Kris McLean, Tyson A. McLean, Kris McLean Law Firm, PLLC, Missoula, MT, for Defendant-Intervenor.

Andrea Zaccardi, Pro Hac Vice, Center for Biological Diversity, Victor, ID, Edward B. Zukoski, Pro Hac Vice, Center for Biological Diversity, Denver, CO, Kristine Marie Akland, Akland Law Firm, PLLC, Missoula, MT, Rachel Glenn Inabnit, Law Office of Rachel Inabnit, PLLC, Missoula, MT, Ronni M. Flannery, Missoula, MT, Marla Fox, Pro Hac Vice, Marla Fox LLC, Carson, WA, for Plaintiffs Center for Biological Diversity, Yaak Valley Forest Council, Wildearth Guardians in CV 22-114.

Rebecca Kay Smith, Public Interest Defense Center, Missoula, MT, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, for Plaintiffs Alliance for the Wild Rockies, Native Ecosystems Council in CV 22-114.

Erika Furlong, John P. Tustin, U.S. Department of Justice, Environment & Natural Resources, Washington, DC, Hayley A. Carpenter, Caitlyn Faye Cook, Wildlife & Marine Resources Section, Washington, DC, for Defendants in CV 22-114.

OPINION and ORDER

Donald W. Molloy, District Judge

In these consolidated cases, environmental organizations Plaintiff Center for Biological Diversity, Plaintiff Yaak Valley Forest Council, and Plaintiff WildEarth Guardians (collectively "Plaintiffs") along with Consolidated Plaintiff Alliance for the Wild Rockies and Consolidated Plaintiff Native Ecosystems Council (collectively "Consolidated Plaintiffs") challenge decisions by the United States Forest Service (the "USFS") and the United States Fish and Wildlife Service (the "FWS") (collectively "Federal Defendants") concerning the Kootenai National Forest Black Ram Project (the "Project"). Plaintiffs and Consolidated Plaintiffs allege that the USFS's and the FWS's approval of the Project violated the National Environmental Policy Act ("NEPA"), the Endangered Species Act ("ESA"), the National Forest Management Act ("NFMA"), and the Administrative Procedure Act ("APA"). The Kootenai Tribe of Idaho (the "Tribe") has intervened as a defendant. Currently pending are (1) Plaintiffs' motion for summary judgment, (Doc. 50); (2) Consolidated Plaintiffs' motion for summary judgment, (Doc. 52); (3) Federal Defendants' cross-motion for summary judgment, (Doc. 60); (4) the Tribe's cross-motion for summary judgment, (Doc. 65); and (5) Federal Defendants' motion to strike, (Doc. 86). For the reasons stated herein, the motions for summary judgment are granted in part and denied in part, and the motion to strike is denied.

BACKGROUND¹

I. The Black Ram Project

The Project's action area² ("Project area") is in the Three Rivers Ranger District of the Kootenai National Forest in the northwest corner of Montana. FWS-000006. Importantly, the Project area is also located within the Tribe's ancestral territory, known as Kootenai or Ktunaxa Territory, which is "in an area of importance to the Tribe for exercise of its reserved rights and religious practice . . . ." (Doc. 23-6 at ¶ 9.)

The Project area encompasses 95,412 acres, 91,647 of which are in the Kootenai National Forest. FS-002242. The Project area also encompasses various unique features such as the Pacific Northwest Trail, FS-002242, riverways designated as eligible to be protected as Wild and Scenic Rivers, see FS-002253, and the Pete Creek Botanical Area, see FS-002167. The Project will involve vegetation management on roughly 13% of the Project area, which includes commercial timber harvest and other fire mitigation measures. FS-002242. Four percent, or 3,902 acres, will be used for commercial timber harvest, 45 percent of which is set to be clearcut. FS-002153-54. The Project also authorizes 3.3 miles of new permanent road construction, and 90.3 miles of road reconstruction overall. FS-002154-55. Between 1986 and 2018, the Project area had 142 fire starts, nine percent of which grew to be large (equal to or greater than 10 acres). FS-002324.

The USFS proposed the Project to promote resilient vegetation; maintain or improve watershed conditions; improve big game winter range conditions; promote forage opportunities; maintain or improve recreational opportunities; reduce the potential for high intensity wildfires; and provide forest products that contribute to the sustainable supply of timber products. FS-002148-49. The purposes were first acknowledged in the Kootenai National Forest's 2015 Land Management Plan Revision. See FS-000001-189. Ultimately, the USFS indicated a need for the Project because the composition, structure, and function of the trees in the Project area did not meet desired conditions set for the Kootenai National Forest. See FS-002149.

II. Grizzly Bear

Historically, grizzly bears lived throughout much of western North America with populations as high as 50,000 bears. FWS-000961. By the time the grizzly bear was listed as threatened in 1975, grizzly bears had been reduced to less than two percent of their historic range with an estimated 700 to 800 individuals in the contiguous United States. FWS-000961. Since 1975, some grizzly bear populations have expanded considerably and now occupy approximately 6 percent of their historic range in that area. FWS-000962. Grizzly bears are currently listed as a threatened species under the ESA, though no critical habitat has been designated. FWS-000009.

The Project area is located within the Cabinet-Yaak Ecosystem Recovery Zone. FWS-001923. The Cabinet-Yaak Ecosystem is one of six recovery zones the FWS identified to evaluate grizzly bear recovery in the contiguous United States. Save Our Cabinets v. U.S. Fish & Wildlife Serv., 255 F. Supp. 3d 1035, 1059 (D. Mont. 2017). The entire project area falls within two Bear Management Units: 14 (Northwest Peaks) and 15 (Garver):

BMUs are analysis areas that approximate the lifetime size of a female's home range, but are not meant to depict the actual location of female home ranges on the landscape. BMUs were originally identified for management purposes to provide enough quality habitat for home range use and to ensure that grizzly bears were well distributed across each recovery zone. Because BMUs approximate female home ranges, they are an appropriate scale to use for assessing the effects of proposed actions on individuals for the purposes of Section 7(a)(2) consultation. Thus, for the purposes of analyzing grizzly bear effects in this biological opinion, the action area for the Black Ram Project includes the entirety of BMUs 14 and 15, an area larger than the Black Ram Project area.

FWS-000006-7 (internal citations omitted).

Grizzly bears' habitat needs are "driven by the search for food, water, mates, cover, security, or den sites," which are impacted by human activities. FWS-000018; see also FWS-001072. Habitat productivity (food distribution, quality, and abundance) and availability of other habitat components (e.g., cover) also affect grizzly bear habitat use and function. FWS-001107. In the Cabinet-Yaak Ecosystem, grizzly bears heavily consume fruit from July through September, and huckleberries are a particularly important food source. See FWS-000029. According to the FWS, the Project will "reduce overstory canopy to improve growing conditions for huckleberries and other shrubs and forbs, which provide forage for grizzly bears." FWS-000046. It further explained that any attempts to improve forage along roads "will not be expected to substantially increase forage" because "bears tend to avoid areas along motorized routes." FWS-000046.

III. Administrative Review and Approval of the Black Ram Project

In July 2017, the USFS began developing the Project. FS-045772-73. After issuing an Environmental Assessment ("EA") in July 2019, Plaintiffs and Consolidated Plaintiffs provided comments. FS-034340-72 (Center for Biological Diversity); FS-034424-670 (WildEarth Guardians); FS-034173-269 (Yaak Valley Forest Council); FS-034673-828 (Alliance for the Wild Rockies & Native Ecosystems Council). On June 21, 2022, the USFS issued a Final EA, FS-002231-2828, Decision Notice, and Finding of No Significant Impact ("FONSI"), FS-002146-2230. On August 26, 2022 the FWS issued an amended Biological Opinion superseding an older version but not incorporating any new information, rather merely "clarify[ing]" their rationale for the Project (hereafter the "BiOP"). FWS-00006.

IV. Procedural History

Plaintiffs filed suit on June 30, 2022, raising three claims and seeking a declaration that the USFS's approval of the Project and its Decision Notice, FONSI, and 2022 Final EA violated NEPA. (Doc. 1.) On December 2, 2022, Plaintiffs filed an amended complaint, adding four additional causes of action for a total of seven: (1) the USFS's failure to take a hard look in violation of NEPA; (2) the USFS's failure to prepare an environmental impact statement ("EIS") in violation of NEPA; (3) the Project's inconsistency with the Kootenai Forest Plan in violation of NFMA; (4) the FWS's failure to use the best available science and create an accurate environmental baseline for the grizzly bear in violation of the ESA; (5) the FWS's failure to...