Native Ecosystems Council v. Erickson

330 F.Supp.3d 1218

NATIVE ECOSYSTEMS COUNCIL and Alliance for the Wild Rockies, Plaintiffs,

v.Mary C. ERICKSON, Custer Gallatin National Forest Supervisor, Leanne Marten, Regional Forester of Region One of the U.S. Forest Service, Thomas L. Tidwell, Chief of the U.S. Forest Service, an agency of the Department of Agriculture, and the U.S. Fish & Wildlife Service, an agency of the Department of the Interior, Defendants.

CV 17-53-M-DWM

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

Signed August 1, 2018

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

Mark Steger Smith, U.S. Attorney's Office, Billings, MT, Melissa Anne Hornbein, U.S. Attorney's Office, Helena, MT, Trent S.W. Crable, U.S. Department of Justice-Environmental Enforcement, Washington, DC, for Defendants.

OPINION & ORDER

Donald W. Molloy, District Judge

INTRODUCTION

This case concerns three decisions of the United States Forest Service ("Forest Service"): (1) the Forest Service Chief's designation of approximately five million acres in Montana ("Designation") pursuant to the 2014 Farm Bill Amendment to the Healthy Forests Restoration Act ("HFRA"); (2) approval of the Smith Shields Forest Health Project ("Project") via categorical exclusion; and (3) approval of the "Clean Up Amendment" ("Amendment") to the Gallatin Forest Plan ("Plan"). (Doc. 1 at ¶ 2.)¹ Plaintiffs Native Ecosystems Council and Alliance for the Wild Rockies (collectively "Plaintiffs") claim that the Forest Service and the Fish and Wildlife Service (collectively "Defendants") violated the National Environmental Policy Act ("NEPA"), the Endangered Species Act ("ESA"), the National Forest Management Act ("NFMA"), HFRA, and the Administrative Procedures Act ("APA"). (Id. at ¶ 8.) The parties have filed cross-motions for summary judgment. Plaintiffs also seek to supplement the record, while Defendants filed a motion to strike. For the following reasons, the Defendants' motions are granted and the Plaintiffs' motions are denied.

BACKGROUND

The factual background for this case involves three different Forest Service decisions, discussed below.²

I. Montana Landscape Designation

In 2014, HFRA was amended to provide for the designation of "landscape-scale areas" in the National Forests of any state experiencing insect infestations and/or disease. P.L. 113-79 ; 16 U.S.C. §§ 6591a, 6591b. The amendment provided a 60-day period within which the Secretary, "if requested by the Governor of the State," was required to "designate as part of an insect and disease treatment program 1 or more landscape-scale areas ... experiencing an insect or disease epidemic." 16 U.S.C. § 6591a(b)(1). The Secretary delegated this authority to the Forest Service Chief. SmithShields 000001, 7. At the subsequent request of Montana Governor Steve Bullock, Forest Service Chief Thomas Tidwell designated 4,955,159 acres as threatened landscapes in Montana. Id. at 000023, 014419. The Project area was part of the Designation. Id. at 014398.

II. Smith Shields Forest Health Project

The Project is located in the Crazy Mountains, approximately 16 miles northeast of Wilsall, Montana.³ Id. The Project area covers 19,000 acres at the border of Meagher and Park Counties, but the actual treatment and activity area is approximately 1,660 acres. Id. It is located in the Wildland Urban Interface, as defined by the Meagher and Park County Community Wildfire Protection Plans. Id. In the last fifteen years, the Project area has experienced western spruce budworm outbreaks resulting in defoliation, crown dieback, and small tree mortality. Id. at 014399. The area has also suffered from mountain pine beetle infestation, including at epidemic levels during an outbreak from 2006 to 2010. Id. at 014400. Lodgepole pine dwarf mistletoe has also been found in the Project area. Id. at 014402.

The Project was designated as part of an insect and disease treatment program in accordance with Title VI, Section 602, of HFRA [ 16 U.S.C. § 6591 et seq. ], as amended by Section 8204 of the 2014 Farm Bill. SmithShields 014398. Put simply, the Project was designated under the Farm Bill amendment. The Forest Service approved the Project pursuant to 16 U.S.C. § 6591b(a), which provides that certain projects may be categorically excluded from NEPA's requirement that agencies prepare an Environmental Impact Statement ("EIS") for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The Project was subject to scoping and public notice. SmithShields 014416. Notice was provided to over 150 individuals and organizations, and development included a public meeting and field trip. Id. at 014416-17.

The Project's purpose is to "reduce vegetative susceptibility to subsequent insect and disease activity to minimize tree mortality that would contribute to surface fuel loadings," and to "maintain fuel loadings at levels that are not conducive to active, crown independent wildland fires during severe weather conditions." Id. at 014403. To that end, the Project includes fuel reduction treatments and vegetation management activities including intermediate and regeneration, or clearcut, harvest. Id. at 014404. Specifically, the Project will result in 351 acres of "regeneration harvest" (including clearcutting, clearcutting with patches, clearcutting whole tree yards, and group selection), and 1,309 acres of "intermediate harvest" (including sanitation/salvation, salvage/stand improvement, and thinning). Id. at 014405. It will also involve road management activity, including 16.0 miles of maintenance on secondary routes, 1.4 miles of maintenance on alternate routes, 20.3 miles of maintenance on primary routes, and 6.2 miles of temporary road construction. Id.

III. Gallatin Forest Plan Clean Up Amendment

On November 2, 2015, the Gallatin Forest Plan was amended to "remove or correct outdated, ineffective, or unnecessary direction from the Gallatin Forest Plan given that full revision of the Plan is not anticipated to be completed until 2019 or later." CleanUp 000739. The Amendment modified or removed 56 goals and standards in the Forest Plan. Id. At issue in this case are Amended Forest-wide Standards 6(a)(5) (big game hiding cover) and 6(c)(2) (old growth). Id. at 000354, 000358-59.

The Forest Service prepared an Environmental Assessment ("EA") as part of the amendment process. Id. at 000320-498. The EA included an initial public comment period in 2009, and, following slight revision, a second comment period in 2011. Id. at 000774. The Draft EA was made available for public comment in 2014. Id. Following completion of the EA, the Forest Service issued a Finding of No Significant Impact, determining that the changes proposed in the Amendment "will not have significant impacts on the quality of the human environment," and that preparation of an EIS was not necessary. Id. at 000775.

IV. Procedural History

Plaintiffs participated in the comment process for both the Project and the Amendment. SmithShields 000527, 000706; CleanUp 001045, 001058, 003218. Plaintiffs also submitted objections regarding both decision. SmithShields 014452; CleanUp 005512, 005515.

Plaintiffs commenced this suit on April 27, 2017. (Doc. 1.) The Complaint alleges violations of the ESA, NEPA, NFMA, and HFRA. Plaintiffs bring seven claims, alleging: (1) the Forest Service Chief's designation of approximately five million acres in Montana pursuant to the 2014 Farm Bill Amendment to HFRA violated NFMA, NEPA, and the ESA; (2) the Project threatens Canada lynx in violation of NEPA, NFMA, and the ESA; (3) the Amendment and the Project violate NEPA and NFMA as relates to the big game hiding cover standard (Amended Standard 6(a)(5) ); (4) the Amendment and the Project violate NEPA and NFMA as relates to the old growth standard (Amended Standard 6(c)(2) ); (5) the Project violates HFRA by failing to consider best available science and maximize old growth retention; (6) the Project violates NEPA and NFMA by relying on a Management Indicator Species (pine marten) that is not present in the Project area; and (7) the Project violates NEPA and NFMA by failing to ensure against irreversible losses in soil productivity. (Doc. 1 at 30-40.)

Plaintiffs filed, and subsequently withdrew, a motion for preliminary injunction. Defendants filed their Answer on July 14, 2017. Meagher and Park Counties requested, and were granted, leave to file an amicus brief in support of the Project, as were the State of Montana and the Montana Department of Natural Resources and Conservation.⁴ Plaintiffs filed a motion for summary judgment on August 28, 2017, and Defendants filed a cross-motion on September 28, 2017. Defendants filed a motion to strike four declarations attached to the Complaint on September 28, 2017, and Plaintiffs filed a motion to supplement the record with two additional declarations on October 27, 2017. On January 31, 2018, the case was reassigned from Judge Christensen. A hearing on the motions was conducted July 17, 2018.

SUMMARY CONCLUSION

Plaintiffs assert a number of challenges to the Designation, the Project, and the Clean Up Amendment. Plaintiffs' arguments boil down to objections to Forest Service policy and granular attacks on Forest Service science. Defendants rebut that their actions in these three areas were neither arbitrary and capricious nor contrary to law. Defendants prevail.

LEGAL STANDARDS

I. APA

ESA, NEPA, and NFMA claims are reviewed under the Administrative Procedures Act ("APA"), which states that a court "shall ... hold unlawful and set aside agency actions, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(a) ; Neighbors of Cuddy Mtn. v. Alexander , 303 F.3d 1059, 1065 (9th Cir. 2002) (NEPA and NFMA); Arizona Cattle Growers' Ass'n. v. U.S. Fish & Wildlife , 273 F.3d 1229, 1235 (9th Cir. 2001) (ESA). Because HFRA includes no private...