412 F.Supp.3d 1188
D. Mont.2019Background
- Alliance for the Wild Rockies challenged the Kootenai National Forest's 2011 "Access Amendments" and the 2013 Pilgrim Creek Timber Sale (Pilgrim Project), arguing road-mile limits and closures were not lawfully implemented.
- Ninth Circuit previously upheld the agencies' exclusion of bermed/barriered roads from total road mileage so long as closures were effective. Alliance's present claims arise from the Ninth Circuit's caution that ineffective closures violate the standard.
- Agencies assumed closures would be effective and did not analyze impacts of illegal use that occurs when closures fail; post-adoption monitoring (2011–2018) shows recurring ineffective closures and increases in road miles in several BORZ areas.
- Alliance sought to supplement the administrative record with a 2016 grizzly-population article and documents cited in the 2011 Biological Opinion; the court denied supplementation and judicial notice requests.
- The Fish and Wildlife Service's 2011 Biological Opinion set static 2010 baseline road-mile thresholds as surrogates for incidental take; monitoring and agency baseline "updates" have increased mileage in several BORZs above those baselines.
- Court granted Alliance summary judgment, remanding to agencies to reinitiate ESA Section 7 consultation for both the Access Amendments and the Pilgrim Project and to prepare a supplemental EIS for the Pilgrim Project.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Can Alliance supplement the administrative record with extra scientific materials? | Kendall article and FWS "literature cited" are necessary to assess whether agencies considered ineffective closures. | APA record review limits supplementation; exceptions not met; judicial notice inappropriate. | Denied — supplementation and judicial notice rejected; record remains the administrative record. |
| 2) Must agencies reinitiate ESA Section 7 consultation for the Access Amendments? | Chronic ineffective closures and updated mileage have caused incidental take to exceed the incidental take statement and present new effects; reinitiation required under 50 C.F.R. §402.16(a),(b),(c). | Temporary/isolated breaches do not change conclusions; baselines may be updated; effects were contemplated. | Granted — reinitiation required: (a) take exceeded because static 2010 baselines were effectively exceeded; (b) new information reveals effects not previously considered; (c) conservation measures failed chronically, invalidating prior analysis. |
| 3) Must agencies reinitiate consultation for the Pilgrim Project (tiered to the Access Amendments)? | Pilgrim is tiered to the Access Amendments; if programmatic consultation must be reinitiated, project-level consultation must be too. | Project-specific monitoring and closures will return mileage below baseline; no separate second-tier biological opinion required. | Granted — because reinitiation is required for the Access Amendments, reinitiation is required for the Pilgrim Project. |
| 4) Is a supplemental EIS required for the Pilgrim Project under NEPA? | NEPA analyses assumed effective closures; new monitoring shows that assumption is false and the resulting uncertainty and impacts on grizzly bears are significant. | Project-level EIS and supplemental information report addressed effects; impacts remain below baseline, so no "significant" new information. | Granted — the incorrect assumption that closures would be effective and the uncertain, material new information about illegal use require a supplemental EIS. |
Key Cases Cited
- All. for the Wild Rockies v. Bradford, 856 F.3d 1238 (9th Cir. 2017) (approved excluding bermed/barriered roads from total mileage if closures are effective; cautioned ineffective closures violate the standard)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (arbitrary and capricious standard for agency action)
- Norton v. S. Utah Wilderness All., 542 U.S. 55 (U.S. 2004) (discrete agency action and unlawful withholding under APA)
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (U.S. 1971) (scope of record review in APA cases)
- Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) (narrow construction of extra-record exceptions)
- Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004) (agency may not "update" a biological opinion without reinitiation)
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (U.S. 1989) (standard for whether a supplemental EIS is required)
- Center for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101 (9th Cir. 2012) (failure of promised conservation measures can invalidate a biological opinion)
- Forest Guardians v. Johanns, 450 F.3d 455 (9th Cir. 2006) (isolated or insignificant deviations do not require reinitiation)
- Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) (discussion of considering extra-record evidence in ESA citizen-suit contexts)
- Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) (both action and consulting agencies have duties to reinitiate consultation)