35 F. Supp. 3d 1246
D. Mont.2014Background
- Pilgrim Creek Timber Sale Project is on the Cabinet Ranger District of the Kootenai National Forest in the Clark Fork BORZ, Montana.
- Project includes 4.7 miles of new permanent roads, extensive road reconstruction, and 3,754 acres of helicopter-ignited prescribed burning among other activities.
- Plaintiff challenges the Project as harming grizzly bears and alleges NFMA, ESA, and NEPA violations, focusing on the Access Amendments and incidental take statement.
- Access Amendments prohibit net permanent increases in total miles of open/total roads within BORZ unless barriered or otherwise offset (temporary increases allowed under certain closures).
- Court partially grants and partially denies summary judgment, remanding road-closure issues to the Forest Service while upholding helicopter analysis under NFMA/NEPA.
- Administrative record issues include alleged NEPA disclosure problems and errors in the Biological Assessment, which the court resolves in favor of the agencies on those points.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do new permanent roads count toward total road miles under the Access Amendments? | Barriered roads should still count toward total road miles. | Barriered roads do not count toward total road miles. | No net permanent increase; barriered roads do not count. |
| Will the new roads be barriered as required by Standard 11(B)? | Roads will not be barriered properly and thus violate the Amendments. | Roads will be barriered; gates may allow future maintenance. | Remanded to determine proper closing or in-kind reductions; current record shows insufficient barriering. |
| Did NEPA disclosure inconsistencies on total road mileage violate NEPA? | Inconsistencies impeded informed decision making. | Plaintiff waived this issue; no NEPA violation. | Plaintiff waived; summary judgment for Defendants. |
| Did ESA/NFMA constraints apply to the road analysis and the Biological Assessment? | Errors or misstatements in the assessment undermine compliance. | Errors corrected; analysis not arbitrary/capricious. | Summary judgment for Defendants; ESA not violated. |
| Was the helicopter use analysis consistent with best available science under NFMA and adequately analyzed under NEPA? | Analysis failed to apply Guide to helicopter effects; insufficient NEPA hard look. | Analysis used best available science; factors and variables properly considered. | Not likely to adversely affect; summary judgment for Defendants. |
Key Cases Cited
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (hard look at environmental impacts under NEPA)
- California v. Block, 690 F.2d 753 (9th Cir. 1982) (requires a thorough discussion of environmental consequences)
- Native Ecosystems Council v. U.S. Forest Service, 418 F.3d 953 (9th Cir. 2005) (agency interpretations not entitled to deference when contrary to clear plan text)
- Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372 (9th Cir. 1998) (site-specific actions must be consistent with forest plans)
- United States v. Alpine L. & Reservoir Co., 887 F.2d 207 (9th Cir. 1989) (deference to agency interpretation in scientific matters is limited)