Native Ecosystems Council v. Weldon

848 F.Supp.2d 1207

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

v.Leslie WELDON, Regional Forester of Region One of the U.S. Forest Service, and United States Forest Service, an Agency of the U.S. Department of Agriculture, Defendants.

No. CV 11–99–M–DWM.

United States District Court,

D. Montana,

Missoula Division.

March 26, 2012.

Rebecca Kay Smith, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, for Plaintiffs.

Andrew A. Smith, U.S. Department of Justice, Albuquerque, NM, Mark Steger Smith, Office of the U.S. Attorney, Billings, MT, for Defendant.

ORDER

DONALD W. MOLLOY, District Judge.

The plaintiffs challenge the Custer National Forest's Beaver Creek Landscape Management Project. Both parties move for summary judgment and for the reasons set forth below both motions are granted in part and denied in part.

Background

The Forest Service's Record of Decision for the Project authorizes, among other things, 1,487 acres of commercial logging, 35.2 miles of road construction or reconstruction, and 8,054 acres of prescribed burning. The Project will take six to ten years to implement.

The plaintiffs challenge several aspects of the Project. They claim that the Project violates the National Forest Management Act (“NFMA”) and the National Environmental Policy Act (“NEPA”) because it does not adequately protect elk habitat, it fails to protect old growth, and is deficient for goshawk habitat. They also claim that the Forest Service violated NEPA by failing to timely disclose the potential need for stormwater discharge permits under the Clean Water Act and by failing to consult with state agencies regarding those permits.

The plaintiffs filed two administrative appeals with the Forest Service and lost them both. They then filed this lawsuit on July 8, 2011.

Merits aside, the defendants make two procedural arguments. First, they argue that the plaintiffs failed to exhaust many of the claims that they now raise in their complaint. Second, the defendants move to strike 15 exhibits that the plaintiffs filed in support of their motion for summary judgment because the exhibits are not part of the administrative record and because the plaintiffs did not timely move to supplement the record.

As to the plaintiffs' motion ¹, the Forest Service did not violate NEPA or NFMA by: (1) failing to apply the Plan's definition for Elk Hiding Cover or (2) failing to include a specific elk-habitat standard in the Plan. But the Forest Service's analysis of elk habitat in the Final Environmental Impact Statement (“EIS”) violates NEPA because the Service acted arbitrarily and capriciously in: (1) failing to explain why it analyzed road density only at the Project level and ranger-district level, (2) in failing to explain why it applied the road-density standard to only Forest lands, and (3) in failing to analyze road density during Project implementation. Moreover, the Forest Service violated NEPA regulations by: (1) failing to identify the stormwater discharge permits that it might need to obtain for the Project and (2) by failing to solicit comments on the permits from State agencies. As a result, those matters are remanded to the Forest Service so that it can prepare a supplemental environmental impact statement that addresses these deficiencies.

As to the defendants motion, and in addition to the issues above, the plaintiffs have exhausted their claims below. The defendants' motion as to that issue is denied.

The defendants' motion to strike 15 exhibits that the plaintiffs filed in support of their motion for summary judgment is granted.

Summary Judgment Standard

A party is entitled to summary judgment if it can demonstrate “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only disputes over facts that might affect the outcome of the lawsuit will preclude entry of summary judgment; factual disputes that are irrelevant or unnecessary to the outcome are not considered. Id. at 248, 106 S.Ct. 2505.

Review of Forest Service Actions

NFMA imposes both procedural and substantive requirements on the Service's management of national forests. Hapner v. Tidwell, 621 F.3d 1239, 1246 (9th Cir.2010). Procedurally, NFMA requires the Service to develop and maintain a comprehensive forest plan for each national forest. Id. (citing Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir.2009)); 16 U.S.C. § 1604(a), (e). Once a plan is adopted, all subsequent agency actions must comply with that plan. Id. (citing Ecology Ctr., 574 F.3d at 656). Substantively, NFMA requires the Forest Service to adopt regulations aimed at protecting forest habitat and diversity of wildlife, among other things. 16 U.S.C. § 1604(g)(3). The site-specific forest plans, in turn, must comply with those regulations. Hapner, 621 F.3d at 1246.

Neither NFMA nor its regulations “ ‘specify precisely how the Forest Service must demonstrate that its site-specific plan adequately provide for wildlife viability....’ ” Lands Council v. McNair, 629 F.3d 1070, 1081 (9th Cir.2010) (quoting Lands Council v. McNair, 537 F.3d 981, 992 (9th Cir.2008) (en banc), overruled in part on other grounds as recognized by Am. Trucking Assns. v. City of L.A., 559 F.3d 1046, 1052 (9th Cir.2009)). Consequently it is necessary to “ ‘defer to the Forest Service as to what evidence is, or is not, necessary to support wildlife viability analyses.’ ” Id. (quoting Lands Council, 537 F.3d at 992). The Service, for example, may use the so-called “habit-as-proxy” or “proxy-on-proxy” approaches. Id. (describing the two approaches). “Additionally, viability analysis that uses all currently available scientific data is considered sound.” Id. (citing Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 762 (9th Cir.1996)). When the Service utilizes a proxy approach, it “ ‘nevertheless must both describe the quantity and quality of habitat that is necessary to sustain the viability of the species in question and explain its methodology for measuring this habitat.’ ” Id. (citing Lands Council, 537 F.3d at 987–88).

The court's role in reviewing the Service's action “is simply to ensure that the Forest Service made no ‘clear error of judgment’ that would render its action ‘arbitrary and capricious' ” under NEPA. Lands Council, 537 F.3d at 993. For instance, a review must ensure that the Service has not:

• relied on factors which Congress has not intended it to consider,

• entirely failed to consider an important aspect of the problem,

• offered an explanation for its decision that runs counter to the evidence before the agency, or • offered an explanation that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Lands Council, 537 F.3d at 993 (quoting Motor Vehicle Mfrs. Assn., Inc. v. St. Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)).

In other words, it is unnecessary to “impose bright-line rules on the Forest Service regarding particular means that it mast take in every case to show ... that it has met the NFMA's requirements.” Id. at 993–94. Instead, “[T]he Forest Service must support its conclusions that a project meets the requirements of the NFMA and relevant Forest Plan with studies that the agency, in its expertise, deems reliable.” Id. A court should “conclude that the Forest Service acts arbitrarily and capriciously only when the record plainly demonstrates that the Forest Service made a clear error in judgment in concluding that a project meets the requirements of the NFMA and relevant Forest Plan.” Id.

Analysis

I. Elk habitat

The plaintiffs argue that the Forest Service's analysis of elk habitat violates NEPA and NFMA. In part they are right. The Forest Service's analysis of elk hiding cover (or “canopy cover”) does not violate NFMA or NEPA. But its analysis of road density does violate NEPA. Thus that issue is remanded to the Forest Service so that it may draft a supplemental EIS that addresses the deficiencies.

A. The Plan's Elk Hiding Cover definition

The plaintiffs argue that the Project violates NFMA and NEPA because the Forest Service did not apply the Plan's definition of Elk Hiding Cover when it assessed how the Project would impact elk habitat. The argument is not well taken because neither the Plan nor the Final EIS utilizes a standard for Elk Hiding Cover to which that definition should be applied.

The Plan defines “Elk Hiding Cover” as “Vegetation, primarily trees, capable of hiding 90 percent of an elk seen from a distance of 200 feet or less.” But, as both parties readily acknowledge, the Plan does not set out a standard for Elk Hiding Cover. Nor does the Final EIS employ a standard that triggers the Elk Hiding Cover definition. The only notable standard in the Plan that relates to elk is that elk “will be managed in cooperation with state and Federal Agencies.” ² The Final EIS does not set out a standard for Elk Hiding Cover either.

Since neither the Plan nor the Final EIS contains or utilizes a specific standard for Elk Hiding Cover, the failure to apply a definition for Elk Hiding Cover does not violate the Plan. There is nothing in the Plan or the Final EIS to which that definition should (or could) be applied.

This case is distinguishable from Hapner, where the Ninth Circuit concluded that the “Service's failure to measure elk cover as defined by the Gallatin Plan renders us ‘unable to determine from the record that the agency is complying with the forest plan standard.’ ” 621 F.3d at 1250. There, the forest plan contained a meaningful hiding-cover standard: The Service was required to “[m]aintain at least two thirds of the hiding cover associated with key...