Swan View Coal. v. Haaland

1

SWAN VIEW COALITION and FRIENDS OF THE SWAN, Plaintiffs, v. DEBRA HAALAND, Secretary of the Interior; MARTHA WILLIAMS, Director of the U.S. Fish and Wildlife Service; RANDY MOORE, Chief of the U.S. Forest Service, KURTIS STEELE, Forest Supervisor for the Flathead National Forest; U.S. FOREST SERVICE; and U.S. FISH AND WILDLIFE SERVICE, Defendants.

No. CV 22-96-M-DLC

United States District Court, D. Montana, Missoula Division

June 28, 2024

ORDER

Dana L. Christensen, District Judge.

Plaintiffs Swan View Coalition and Friends of the Wild Swan challenge the United States Fish and Wildlife Service's (“FWS”) 2022 Revised Biological Opinion (the “Revised BiOp”) for the Flathead National Forest's 2018 Revised Land Management Plan (the “Revised Forest Plan”). (Doc. 16.) United States Magistrate Judge Kathleen L. DeSoto has entered Findings and Recommendations on the parties' cross-motions for summary judgment (Docs. 26, 29), Defendants' Motion to Strike (Doc. 47), and Plaintiffs' Motion for Leave to File Third Hammer Declaration (Doc. 51). (Doc. 58.) Judge DeSoto recommends that the parties' cross-motions be granted in part and denied in part Defendants' motion to strike be denied, and Plaintiffs' motion for leave be granted. (Id. at 45-46.) Judge DeSoto further recommends that the Revised BiOp be remanded without vacatur for further consideration. (Id.)

Both parties timely filed objections. (Docs. 60, 61.) Each party is therefore entitled to de novo review of those findings and recommendations to which it specifically objects. 28 U.S.C § 636(b)(1)(C). The Court reviews for clear error those findings and recommendations to which no party timely objects. See Thomas v. Arn, 474 U.S. 140, 149 (1985); McDonnell Douglas Corp. v. Commodore Bus. Machs Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Court is left with a “definite and firm conviction that a mistake has been committed.” United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000). For the reasons stated herein, the Court will adopt in part, modify in part, and reject in part Judge DeSoto's Findings and Recommendations.

Factual and Procedural Background

I. The Flathead National Forest

The Flathead National Forest (the “Forest”) is located in the northern Rocky Mountains of Western Montana and is comprised of approximately 2.4 million acres of public land, including wilderness areas, lands managed for timber production, lands interspersed with private development, and critical habitat for threatened species. USFWS037154-55. Within the Forest, there are five federally designated threatened species-bull trout, grizzly bear, Canada lynx, spalding's campion (or “catchfly”), and meltwater lednian stonefly-one proposed species^[1]-whitebark pine-and one candidate species^[2]-monarch butterfly. USFWS037154.

The Forest is also home to twelve bull trout core areas of the Columbia Headwater Recovery Unit and contains designated bull trout critical habitat in four sub-units of the Clark Fork River Basin Critical Habitat Unit.^[3] USFWS037180. The Forest is located within the grizzly bear North Continental Divide Ecosystem (“NCDE”) and over 2.1 million acres of the Forest are included in the NCDE recovery zone/primary conservation area (“PCA”), which constitutes approximately 37% of the total area of the PCA.^[4]USFWS037156.

II. Historical Management of the Flathead National Forest

Forest Plans are the primary source of direction for National Forests and are intended to provide forest-wide, geographic-area, and management-area desired conditions, objectives, standards, guidelines, and suitability of lands for specific uses. FS-051881-83. The 1986 Flathead National Forest Land Resource Management Plan (the “1986 Forest Plan”) and its amendments “provided a framework for management of all forest resources” on the Forest for over 30 years. FS-054719.

Of particular relevance here, Amendment 19, which was adopted in 1995, outlined objectives and standards for motorized use and motorized route density within grizzly bear management units on the Forest. USFWS037316. Amendment 19 required that there be no net increase in total motorized route density (“TMRD”) greater than 2 miles per square mile, no net increase in open motorized route density (“OMRD”) greater than 1 mile per square mile, and no net decrease in the amount of security core area.^[5]USFWS037316. Amendment 19 also provided management direction to reduce impacts of forest management activities on grizzly bears, especially female grizzly bears. USFWS037316. Although the Forest never fully met the objectives set forth in Amendment 19, from 1995 to 2011 the NCDE grizzly bear population increased and, today, the population is estimated to be over 1,000 individuals distributed throughout, and even beyond, the recovery zone/PCA boundary. USFWS037284.

An important aspect of Amendment 19 with respect to the current litigation is its standards for roads and road density calculations. Under Amendment 19, the Forest Service was required to reclaim a road before excluding it from OMRD, TMRD, and secure core area calculations. FS-178393. Under Amendment 19, a “reclaimed” road is one that “has been treated in such a manner so as to no longer function as a road or trail and has a legal closure order until reclamation is effective,” which could be “accomplished through one or a combination of treatments including: recontouring to original slope, placement of natural debris, or revegetation with shrubs or trees.” FS-178392. Minimum treatment requirements for reclaimed roads include the following:

(a) The entire road will receive treatment such that maintenance or entries to maintain “road drainage” is not needed. This will require removal of culverts or other water passage structures that are aligned-with stream channels. In most cases this will also require that road related sediment sources be repaired and the road reworked to eliminate ditch water flow without the aid of cross drain culverts.

(b) The first portion of the road (typically 200 to 600 feet) will be treated in such a manner so as to preclude its use as a motorized or non-motorized travel way. This will include: (1) making the road junction area unattractive as a travelway, and (2) treating the remainder of the first portion to make awareness of the road. improbable and preclude motorized or non-motorized use.

(c) Treat the road, other than the first portion, in a way that will discourage its use as a motorized or non-motorized travelway. Treatment should include: sporadic placement of natural debris over most of the road length, and surface treatment to encourage natural, planted or seeded revegetation.

FS-178392. Reclaimed roads are closed to both public and administrative use. FS-178392.

III. 2018 Flathead National Forest Revised Land Management Plan

Pursuant to the National Forest Management Act, forest plans must undergo revision at least every fifteen years. 16 U.S.C. § 1604(f)(5)(a). In 2018, the United States Forest Service replaced the 1986 Forest Plan with the 2018 Flathead National Forest Land Management Plan (the “Revised Forest Plan”). FS-054711. Prior to final approval and adoption of the Revised Forest Plan, the Forest Service completed NEPA review, which included preparation of a final environmental impact statement. FS-054711, 17. FWS completed its biological assessment in 2017 and concluded that the Revised Forest Plan “is likely to adversely affect” bull trout and designated bull trout critical habitat, grizzly bear, Canada lynx, and Canada lynx critical habitat. USFWS001341-2. In November 2017, FWS issued its first Biological Opinion (the “2017 BiOp”), which concluded that the Revised Forest Plan was unlikely to jeopardize the threatened or endangered species found on the Forest, nor was it likely to adversely modify their critical habitat. USFWS001957-60, 002058-63, 002166-73.

Similar to Amendment 19, the Revised Forest Plan requires projects to result in no net increase in TMRD or OMRD and no net decrease in secure core area relative to baseline conditions in each bear management subunit within the NCDE recovery zone/PCA.^[6]USFWS037366. Baseline conditions are the on-the-ground conditions in the Forest “as of December 31, 2011, as modified by changes in numbers that were evaluated and found to be acceptable through the Endangered Species Act section 7 consultation with [FWS] while the grizzly bear was listed as threatened.” FS-052052. FWS determined that “[t]he best available science indicates that the [2011] baseline conditions . . . provide adequate habitat conditions . . . to support a stable to increasing grizzly bear population.” USFWS037366.

However, a key difference between the Revised Forest Plan and the 1986 Forest Plan is the replacement of Amendment 19's “reclaimed” road standard with the new “decommissioned,” “impassable,” and “intermittent stored service/intermittent service road, closed to traffic” road standards. FS-052087. A “decommissioned” road is defined as “[a]n unneeded road that has been stabilized and restored to a more natural state.” FS-052079. An “impassable” road is defined as:

A road that has been treated in such a manner that the road is blocked and there is little resource risk if road maintenance is not performed on a regular basis (self-maintaining) Roads may become impassable due to a variety of causes, including but not limited to one or more of the following: natural vegetation growth, road entrance obliteration, scarified ground, fallen trees, boulders, or culvert or bridge removal. Impassable roads may remain on the inventoried road system if use of the road is anticipated at some point in the future.

FS-052079. An “intermittent stored service/intermittent service road, closed to...