Native Ecosystems Council v. Krueger

946 F.Supp.2d 1060

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

v.Faye KRUEGER, Regional Forester of Region One of the U.S. Forest Service; United States Forest Service, an agency of the U.S. Department of Agriculture, and U.S. Fish and Wildlife Service, an agency of the U.S. Department of Interior, Defendants.

No. CV–12–27–M–DLC.

United States District Court,

D. Montana,

Missoula Division.

May 24, 2013.

Rebecca Kay Smith, Public Interest Defense Center, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, for Plaintiff.

Bradley Howard Oliphant, U.S. Department of Justice, Denver, CO, Julie Sharon Thrower, U.S. Department of Justice, Washington, DC, Mark Steger Smith, Office of the U.S. Attorney, Billings, MT, for Defendants.

ORDER

DANA L. CHRISTENSEN, Chief Judge.

Plaintiffs filed suit in February 2012 seeking judicial review of the United States Forest Service's Decision Notice and Finding of No Significant Impact (FONSI) authorizing implementation of the Fleecer Mountains Project (“Project”) on the Beaverhead–Deerlodge National Forest (“the Forest”). Plaintiffs also challenge the Record of Decision and corresponding documents authorizing the implementation of the Revised Beaverhead–Deerlodge National Forest Land and Resource Management Plan (“Forest Plan” or “Plan”).

Plaintiffs claim the Project and the Forest Plan violate Section 7 of the Endangered Species Act (“ESA”) because the United States Forest Service (“Forest Service”) failed to complete consultation with the United States Fish and Wildlife Service (“Wildlife Service”) about the potential affects of the Project and Plan on grizzly bears and Canada lynx. They also claim the Project and Forest Plan violate the National Forest Management Act (“NFMA”) and National Environmental Protection Act (“NEPA”) in various ways. They contend the Environmental Assessment (“EA”) for the Project failed to disclose and apply the best available science regarding elk, grizzly bears, and lynx; that the Forest Plan does not ensure elk, grizzly bear, and lynx viability; that the Forest Service predetermined that it would reach a finding of no significant impact for the Project; and that the Forest Service failed to disclose whether a point source water pollution permit was necessary for the Project and failed to consult with the State of Montana on this issue.

Defendants counter that they complied with their obligations under the ESA, NFMA, and NEPA, and also insist that Plaintiffs' allegations of standing are inadequate.

For the reasons discussed below, the parties' motions for summary judgment are granted in part and denied in part. As a threshold matter, the Court finds that Plaintiffs have standing to challenge both the Forest Plan and the Project. Summary judgment is also granted in favor of Plaintiffs on their claims under the ESA. The Court concludes that the case must be remanded to the Wildlife Service to consider whether lynx “may be present” in the Forest because the Wildlife Service improperly applied a stricter standard to that inquiry. Until the Wildlife Service conducts its analysis under the proper standard and the parties complete any consultation that might become necessary, the Project must be enjoined. The Forest Service's biological assessment of whether the Project “may affect” grizzly bears was also arbitrary and capricious, and a new biological assessment must be prepared.

Summary judgment is granted in favor of Plaintiffs on their claim that the Forest Plan's and Project's discussions of elk violate NEPA. Although the Forest Service did not act arbitrarily or capriciously in setting road density levels for the Forest, analyzing road density at the landscape and hunting unit scales, or defining secure areas for elk, the Court nevertheless finds that the Forest Service must supplement its EIS for the Forest Plan to explain or support, if possible, its decision to exclude temporary roads from the road density objectives and to correct the record to show that permitted and administrative roads are included in the objectives. The Project EA must also be supplemented with a full and fair discussion of the impact that temporary roads will have on elk during the Project's lifetime, an important aspect of the problem given the already high road density levels in the Project area.

Summary judgment is granted in favor of Defendants on Plaintiffs' claims that the Forest Plan and Project violate NEPA and NFMA in their consideration of Canada lynx. By incorporating the Lynx Direction and considering the impact of linkage and connectivity on wildlife including lynx, the Forest Service adequately considered the best available science and provided for the viability of lynx when developing the Forest Plan. The Project is consistent with the Plan's standards, and the Forest Service considered the Lynx Direction in its Environmental Assessment and Wildlife Report.

Summary judgment is also granted in favor of Defendants on Plaintiffs' claims that the Forest Plan and Project violate NEPA and NFMA in their consideration of grizzly bears. The Forest Plan includes enforceable standards and guidelines in the form of road density levels and secure area designations that are consistent with the best available science. A supplemental Environmental Impact Statement (“EIS”) is not required under Norton v. S. Utah Wilderness Alliance (“SUWA”), 542 U.S. 55, 73, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), unless the Forest Service decides upon concluding consultation with the Wildlife Service that the Forest Plan needs to be amended. The Project's Environmental Assessment is properly tiered to the Forest Plan, and the Forest Service did not fail to disclose and apply any science that was not adequately considered and disclosed when the Forest Plan was developed.

Summary judgment is also granted in favor of Defendants on Plaintiffs' remaining two arguments. The FONSI was not predetermined, and the Forest Service was not required to obtain a NPDES permit for stormwater runoff.

Facts

The Fleecer Mountains Project is a timber sale or salvage project planned for an area northwest of Wise River, Montana, in the Beaverhead–Deerlodge National Forest. FP:A01:1.¹ The Project area is in the Fleecer watershed and encompasses 102,424 acres, including private lands and 98,769 acres of National Forest Service lands within the Beaverhead–Deerlodge National Forest. Id.

According to the Forest Service's Decision Notice, the goals of the Project are to improve forest conditions in the area, supply wood products to the forest products industry, and secure habitat for westslope cutthroat trout. Id. About 95 percent of the lodgepole pine stands in the Project area have been affected by mountain pine beetle. Id. Many of the trees are dead or dying, and the value of the wood as a commercial product decreases as the wood deteriorates. Id. Additionally, Douglas Fir trees are dying due to recent drought conditions and dense stand conditions, which make the trees more susceptible to the western spruce budworm. Id. at 2. The Forest Service also aims to address the encroachment of Douglas fir on to grassland and sagebrush parks that were free of conifers historically and to improve the growing conditions and stand resiliency of Douglas fir by reducing stand density. Id. Removing conifers is expected to promote riparian-associated aspen stands, which have decreased in patch size and distribution. Id. at 3. Finally, the Project involves establishing new fish-movement barriers and replacing culverts in two creeks in order to secure westslope cutthroat trout habitat, which is threatened by competition from normative fish populations. Id.

Plaintiffs' claims concern three species: lynx, grizzly bear, and elk. The Forest is classified as unoccupied by lynx, but potential linkage areas have been identified on the north end of the Project area to the Anaconda Mountains and Anaconda–Pintler Wilderness and to the southwest to the Pioneer Mountains. FP:A02:96. The grizzly bear is the only federally listed wildlife species known to occur in the Forest; grizzlies have recently been sighted on the north end of the Forest and have been documented in the John Long Mountains, the Anaconda Range, and the Flint Creek Range. Id. at 99. While there are no reports of grizzlies in the Project area itself, the area has “fairly good connectivity” with the Anaconda–Pintler Wilderness, where there have been several recent sightings of grizzlies. Id. at 101. Elk are found throughout the Project area, which includes hunting units 319 and 341. Id. at 121.

Additional facts in the record are discussed as they become relevant in the analysis below.

Analysis

I. Standing

A plaintiff must have standing in order to present a justiciable case under Article III of the United States Constitution. Summers v. Earth Island Inst., 555 U.S. 488, 498, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). An organizational plaintiff has standing to sue if at least one identified member would have standing to sue in his or her own right, the “interests at stake are germane to the organization's purposes,” and the member's participation is not necessary to the claim or the relief requested. Friends of the Earth, Inc. v. Laidlaw Envtl. Srvcs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Summers, 555 U.S. at 498, 129 S.Ct. 1142. Three elements are essential to member standing: injury in fact, causation, and redressability. An “injury in fact” must be “(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc., 528 U.S. at 180–181, 120 S.Ct. 693 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Additionally, the injury must be “fairly traceable to the challenged action” and likely to be redressed by a favorable decision. Id.

To establish an injury in fact, an organization must show, through...