464 F.Supp.3d 1169
D. Mont.2020Background
- The 2014 Farm Bill amended the Healthy Forest Restoration Act (HFRA) to allow landscape-scale "Threatened Landscape" designations and authorize categorical exclusions (CEs) for insect/disease projects meeting statutory conditions.
- The Forest Service designated ~4.95 million acres in Montana as a Threatened Landscape; two HFRA projects challenged here are North Bridgers (Custer Gallatin NF) and Willow Creek (Helena-Lewis & Clark NF).
- Plaintiffs Alliance for the Wild Rockies and Native Ecosystems Council sued, alleging NEPA and ESA violations: failure to analyze cumulative effects, effects on adjacent roadless areas, and failure to consider interrelated/interdependent HFRA projects' effects on lynx and grizzly bear.
- The cases were consolidated; parties filed cross-motions for summary judgment and the court reviewed the administrative record under the APA arbitrary-and-capricious standard.
- The Court dismissed several claims for lack of jurisdiction (failure to give proper 60-day ESA notice) or for being unpled/unbriefed, and granted summary judgment to Defendants on the merits for the remaining claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Forest Service had to analyze interrelated/interdependent HFRA actions in ESA consultation | BA omitted effects of other HFRA projects (would affect lynx/grizzly) | Alliance failed 60-day notice for Willow Creek; projects are not "but-for" causes of each other | North Bridgers claim adjudicated on merits and denied; Willow Creek claim dismissed for lack of jurisdiction |
| Whether Forest Service violated NEPA by not analyzing effects on adjacent roadless areas before applying HFRA CE | Project adjacent to roadless area; agency failed significance/extraordinary circumstances review | HFRA CE governed by statute §6591b, not NEPA §1508.4 CE regs; claim not pled for Willow Creek | Claim as to North Bridgers fails — NEPA regulatory CE procedures do not apply to HFRA CEs |
| Whether Willow Creek met HFRA CE statutory requirements (temporary roads, retention of old-growth/large trees, location in WUI/condition class) | Project would create non-obliterated roads; failed to define "large" trees; WUI status challenged | Record requires obliteration within three years and describes methods; qualitative retention analysis sufficient; WUI definition satisfied; some challenges waived for not commenting | CE eligibility upheld; two elements satisfied on record; third element challenge waived and fails on merits |
| Procedural and unbriefed claims (cumulative effects; Helena plan amendments; Blackfoot Travel Plan reinitiation) | Alliance alleges broader NEPA/ESA defects (cumulative effects, plan amendments) | Many claims unpled in complaints, not raised in 60-day notices, or not briefed | Multiple counts dismissed for lack of jurisdiction or for being unbriefed/waived |
Key Cases Cited
- Ctr. for Biological Diversity v. Ilano, 928 F.3d 774 (9th Cir. 2019) (context on HFRA amendments and landscape-scale authority)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (U.S. 1983) (administrative arbitrary-and-capricious standard)
- Klamath-Siskiyou Wildlands Ctr. v. MacWhorter, 797 F.3d 645 (9th Cir. 2015) (60-day ESA notice requirement jurisdictional)
- Sierra Club v. Bureau of Land Mgmt., 786 F.3d 1219 (9th Cir. 2015) (interrelated/interdependent actions and but-for causation test)
- Ctr. for Biological Diversity v. Bureau of Land Mgmt., 698 F.3d 1101 (9th Cir. 2012) (distinguishing cumulative effects from interrelated/interdependent actions)
- Dep't of Transp. v. Pub. Citizen, 541 U.S. 752 (U.S. 2004) (principle of raising objections with the agency)
- Native Ecosys. Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005) (HFRA-related APA review and no private right of action under HFRA)
- Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) (scope of agency analysis)