209 F. Supp. 3d 1181
D. Mont.2016Background
- The East Reservoir Forest Restoration Project (92,407 acres; ~85% National Forest) near Libby, Montana proposes timber harvest, thinning, planting, prescribed fire, and road/system status changes across multiple drainages and a Lynx Analysis Unit; project ROD signed Oct. 27, 2014 adopting Alternative 2 (modified).
- Threatened species considerations: grizzly bear (Tobacco BORZ overlap), Canada lynx (Cripple LAU and lynx critical habitat), and bull trout (present in Lake Koocanusa but not detected in the Project-area creeks per electrofishing records).
- Project transportation actions include maintenance of ~176.4 miles of haul roads, ~9.25 miles new roads, ~4.26 miles temporary roads, additions of ~13 miles of "undetermined" roads to the NFSRS, decommissioning/storing other road miles, and trail reclassifications (9.5 mi motorized to remain; ~27 mi re-designated non-motorized).
- Plaintiffs sued alleging violations of the ESA, NEPA, and NFMA: (1) unlawful net increase in open road miles in the Tobacco BORZ (Access Amendments) causing unpermitted take of grizzlies; (2) improper lynx analysis and need to reinitiate Lynx Amendment consultation; (3) failure to include or analyze bull trout; (4) cumulative plan amendments (withdrawn); (5) inadequate/misleading road-density analysis and disclosure.
- The Court resolved cross-motions for summary judgment, denied Plaintiff's motion, and granted Defendants' and Intervenors' motions, entering judgment for the Forest Service and related agencies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Bull trout: omission from biological assessment & "no effect" finding | Bull trout may be present; must be included in BA and project will affect them | Fish & Wildlife Service list did not include bull trout; electrofishing shows no bull trout in Project creeks; effects to reservoir negligible | Agency decision upheld: BA omission was based on FWS species list; "no effect" finding reasonable given absence of bull trout in tributaries and minimal reservoir effect |
| Grizzly bear / road miles in Tobacco BORZ (Access Amendments) | Project causes net increase (Plaintiff算: new roads + undetermined added − decommissioned = +4.15 mi), violating BORZ baseline and causing unpermitted take | Baseline already included "undetermined" roads; project results in a net decrease (~0.3 mi) in open linear miles | Agency interpretation upheld: record supports treating undetermined roads as part of baseline; no unlawful increase, claim fails |
| Canada lynx: need to reinitiate consultation on Lynx Amendment before projects proceed | Reinitiation required after lynx critical habitat designation (citing Ninth Circuit developments); projects should be enjoined until programmatic consultation completed | Cottonwood does not mandate per se injunctions; project-specific analyses may stand if they provide an independent, reasonable basis showing PCEs and connectivity preserved | Denied reinitiation injunction; Court follows prior approach: project may proceed where agencies show independent, reasonable analysis that PCEs and connectivity are maintained |
| Canada lynx: "not likely to adversely affect" and ALL SI connectivity standard | Project fragments/degrades mature/old growth and removes movement corridors; thus NLAA finding arbitrary | Agencies analyzed PCE subelements, limited treatments to avoid preferred hare/matrix winter habitat, modified treatments in old growth, and found minimal effects; no identified linkage corridors in area | NLAA and ALL SI compliance upheld: record shows analysis of PCEs, limited treatments, and maintained connectivity; agency action not arbitrary |
| NEPA / road & trail disclosures, wildlife security | Forest Service misstated trail closures (some were already closed), failed to disclose road-density increases from re-categorization, and mischaracterized adding undetermined roads | Forest Service corrected inventory errors, disclosed undetermined-road treatment and rationale, and explained steps to avoid net road-density increase; DEIS/Travel Analysis Report documented changes | NEPA claim denied: disclosures and corrections in DEIS and Travel Analysis Report were sufficient; no misleading omission found |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (arbitrary and capricious review framework)
- Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) (Section 7 consultation triggers and standards)
- Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015) (discussion of programmatic Lynx Amendment consultation and standing)
- Conservation Congress v. Finley, 774 F.3d 611 (9th Cir. 2014) (ESA effects analysis standard)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA requires a "hard look")
- Native Ecosystems Council v. Dombeck, 304 F.3d 886 (9th Cir. 2002) (APA review of NEPA/agency action)