WildEarth Guardians v. Steele

545 F.Supp.3d 855

WILDEARTH GUARDIANS, et al., Plaintiffs,andSwan View Coalition, et al., Consolidated Plaintiffs,

v. Kurtis E. STEELE, et al., Defendants,andDavid Bernhardt, et al., Consolidated Defendants,andMontana Logging Association and American Forest Resource Council, Defendant-Intervenors.

Lead Case No. CV 19-56-M-DWM

Member Case No. CV 19-60-M-DWM

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

Signed June 24, 2021

Kelly Nokes, John R. Mellgren, and Susan Jane Brown, Western Environmental Law Center, Timothy J. Preso, Earthjustice Legal Defense Fund, Bozeman, MT, Marla Fox, WildEarth Guardians, for Plaintiffs.

Frederick H. Turner, John P. Tustin, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants.

OPINION & ORDER

Donald W. Molloy, District Judge

INTRODUCTION

In these consolidated cases, Plaintiffs are environmental organizations that challenge decisions by the United States Forest Service and the United States Fish and Wildlife Service (collectively "Federal Defendants") concerning the Revised Forest Plan for the Flathead National Forest. Plaintiffs allege violations of the Travel Management Rule and related Executive Orders. (Doc. 75 at ¶ 256.)¹ Plaintiffs also claim that the Federal Defendants violated the Endangered Species Act ("ESA") and the National Environmental Policy Act ("NEPA") by issuing and relying on the 2017 Biological Opinion ("2017 BiOp"). (Id. at ¶¶ 277, 279.) The Montana Logging Association and the American Forest Resource Council (collectively "Defendant-Intervenors") intervened. Currently pending are the parties’ cross-motions for summary judgment. (Docs. 76, 86, 90.) Plaintiffs’ motion for summary judgment is granted on the limited grounds set forth below. In all other respects, summary judgment is granted in favor of Federal Defendants and Defendant-Intervenors.

BACKGROUND ²

I. Flathead National Forest

The Flathead National Forest is cradled in the Rocky Mountains of northwestern Montana, where its 2.4 million acres of public lands stretch between Glacier National Park and British Columbia. FS-054717. The Forest is home to a vast array of aquatic and wildlife species. At the same time, the Forest "has long been the center of a forest products industry" that supports logging and milling, and the Forest is widely used for social and recreational endeavors. FS-054718.

Relevant here, the Forest supports populations of and habitats for grizzly bears and bull trout; both are discussed below.

A. Grizzly Bears

This case concerns the population of grizzlies living in the Northern Continental Divide Ecosystem ("NCDE"), one of six grizzly bear ecosystems in the continental United States. FS-051889. The NCDE population acts as a source for genetic diversity for other grizzly populations within the United States. FWS-002002. Grizzly bears, including those in the NCDE, remain a "threatened species" under the ESA. FWS-001984–85.

Road management poses one of the greatest threats to grizzly bears and their habitats. FWS-002028. Roads increase the likelihood of collision with a vehicle, illegal harvesting, and access to humans; risk bear displacement and avoidance of roads and road activity; and modify or fragment core grizzly habitat. FWS-002028. Additionally, roads may disrupt breeding behaviors by discouraging female bears to travel, feed, or shelter in high-density road areas. FWS-002066. Relatedly, winter motorized travel poses another significant threat to grizzlies and their habitat. See FS-070901. Specifically, snowmobiles may cause den emergence disruption, FWS-002008, loss of young, FS-112043, and avoidance of den-suitable habitat, FWS-002056.

B. Bull Trout

Bull trout are a threatened species under the ESA, FWS-001860, and the Forest includes 12 bull trout core areas of the Columbia Headwaters Recovery Unit, FWS-001865. Bull trout require specific conditions to live and spawn, such as cold, clean water through which the trout can migrate. FWS-001899. Because bull trout require such specific habitat conditions, they are particularly susceptible to habitat loss, fragmentation, and degradation. FWS-001894. Activities that disrupt riparian vegetation, such as logging, can increase soil moisture and surface runoff, which may adversely impact bull trout habitat. FWS-001931–32. Additionally, roads and traffic in areas around bull trout habitat have the potential to contribute to sediment delivery, FWS-001935, which adversely affects water quality and temperature, FWS-001936.

Relatedly, culverts are structures that allow water to flow under a road from one side to the other, FS-083966, and they represent another threat to bull trout and their habitat in the Forest, see FWS-030236–37. Though the parties here dispute the inevitability of culvert "failure," (see Doc. 93 at ¶ 53), it is undisputed that culverts can trap debris and contribute to sedimentation of streams, which in turn can have adverse effects on water quality and water temperature, FWS-030236–37.

II. Historic Management of the Forest

Forest plans govern the management of national forests, FS-051881, and the National Forest Management Act requires revision of Forest Plans at least every fifteen years, 16 U.S.C. § 1604(f)(5)(A). Until 2018, when the Revised Plan at issue was adopted, the Forest was managed under the 1986 Forest Plan, which was regularly amended and updated with pertinent information from Federal Defendants. FS-054719. Relevant to the development of the Revised Plan are Amendments 19 and 24 to the 1986 Forest Plan, and the Fish and Wildlife Service's 2017 BiOp.

A. Amendment 19

Amendment 19 was adopted in the 1995 Record of Decision ("ROD") and provided objectives for motorized use and route density within bear management units inside the Forest. FS-002015. Pursuant to Amendment 19, in bear management units in which the Forest Service managed at least 75 percent of the land, there would be no net increase in total motorized route density greater than 2 miles per square mile, no net increase in open motorized route density greater than 1 mile per square mile, and no net decrease in the amount of security core area. FS-002015. Amendment 19 also established management directives "reduc[ing] impacts of forest management activities on grizzly bears (especially females) by adopting [certain directives] for subunits where the [Forest Service] managed more than 75 percent of the acres in a subunit." FS-002015. These directives included: (1) limiting high-density open road motorized access (meaning more than one mile per square mile) to no more than 19% per subunit by 1999; (2) limiting high-density total motorized route access (meaning more than two miles per square mile) to no more than 19% of a subunit by 1999; and (3) providing security core areas that equaled or exceeded 60% of each subunit by 1999 and that equal or exceeded 68% by 2005. FS-042259. These ratios are referred to as "19-19-68." (See Doc. 87 at 11.) Although enacted with the aim of protecting grizzlies, Amendment 19 indirectly affected bull trout; fewer roads resulted in fewer road crossings and culverts, which in turn decreased sedimentation in bull trout habitat. FWS-001627.

While the parties dispute the extent to which Amendment 19's route density standards required the Forest Service to reclaim existing roads in affected subunits and to compensate for any new road construction by reclaiming other existing roads, (Doc. 93 at ¶ 56), the text of Amendment 19 requires that "Forest Service actions will result in a net gain towards the objectives on National Forest System lands." FS-042259. Further, it is undisputed that the Forest never met the 19-19-68 objectives and standards of Amendment 19. FS-054747; (see also Doc. 93 at ¶ 57). To meet the objectives of Amendment 19, approximately 518 miles of existing roads would need to be decommissioned. FS-054747.

B. Amendment 24

In 2006, the Flathead National Forest designated 787,000 acres and 3,000 miles of roads and trails for over-snow vehicle use. FS-110265. The designations were later implemented through Amendment 24 to the 1986 Forest Plan, the Forest's then-governing land management plan. FS-110254. The Revised Plan incorporates Amendment 24's previous over-snow vehicle use designations under the Over-Snow Vehicle Rule's grandfather provision. FS-54762. It also identifies 567 additional acres as suitable for over-snow vehicle use, but it does not designate any site-specific planning for that acreage. FS-54762.

C. 2015 Bull Trout Recovery Plan

In 2015, the Fish and Wildlife Service issued a "Recovery Plan for the Coterminous United States Population of Bull Trout" ("the Recovery Plan") on the effects to bull trout and their critical habitat from the implementation of proposed action associated with road-related activities, FS-016973–7167, and the Fish and Wildlife Service issued a 2015 BiOp for Bull Trout, see FS-174182. Most relevant here, the Recovery Plan and 2015 Bull Trout BiOp established annual requirements for culvert monitoring to identify and remove problem culverts before they failed to preempt stream sedimentation threats. FS-174226–67. Appendix A and Appendix E of the 2015 BiOp worked in conjunction to guide the method and manner of the Forest Service's inspection, see FS-174247, 174273, and Appendix E required the Forest Service to annually inspect all culverts remaining in bull trout habitat that were closed by gate or "guardrail, concrete, earth barrier, or contour at intersection," and, in certain instances, to inspect culverts that are closed by boulders, FS-174280, 174820.

III. Procedural History

In 2015, the Forest Service announced its intention to revise the 1986 Plan pursuant to its 2012 Forest Planning Rules. FS-044923. In response, Plaintiffs submitted comments related to the Forest Service's statement of intent to prepare a draft Environmental Impact Statement ("EIS"). FS-083855, 087455, 094993. Once the Forest Service published its draft...