Friends of the Wild Swan v. United States Forest Service
875 F. Supp. 2d 1199
D. Mont.2012Background
- Colt Summit Project in the Lolo National Forest includes vegetation management, road work, and noxious weed treatment; an EA and FONSI were issued.
- Plaintiffs allege NFMA, ESA, and NEPA violations, with emphasis on lynx and lynx habitat impacts.
- Defendants moved for summary judgment; the court grants in part and denies in part.
- Court identifies a single viable claim: FS failed to address past projects in its lynx cumulative effects analysis.
- Court remands to Forest Service for a supplemental EA addressing lynx cumulative effects; other claims are rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FS violated NEPA by failing to analyze lynx cumulative effects | Plaintiffs contend lynx cumulative effects were inadequately analyzed | FS conducted a cumulative effects assessment but did not include Summit Salvage; scope otherwise adequate | Partial reversal: remand for supplemental NEPA analysis on lynx cumulative effects |
| Whether NFMA/VEG S6 and ALL SI standards were violated | Plaintiffs claim VEG S6 and ALL SI were breached | Court finds standards not violated given site specifics and evidence | No NFMA violation found on VEG S6 or ALL SI |
| Whether ESA §7(a)(2) consultation for lynx/lynx critical habitat was adequate | Arguments that ESA consultation was insufficient | Biological assessment and informal consultation with FWS complied | ESA §7(a)(2) satisfied; no further action required for lynx/critical habitat |
| Whether Summit Salvage area should have been included in ESA §7 action area | Summit Salvage area should have been included | Action area scope is agency discretion; inclusion not required here | No error in unit selection; inclusion of Summit Salvage not required |
| Whether predetermination of a FONSI violated NEPA | Notes and contract suggest predetermination | No contractual obligation to a specific outcome; notes show pursuing no-significance goal but not binding | No predetermination; remand for cumulative effects analysis remains necessary |
Key Cases Cited
- Selkirk Conserv. All. v. Forsgren, 336 F.3d 944 (9th Cir. 2003) (deference to agency scope of cumulative effects analysis; bear unit reasoning)
- Cal. Wilderness Coalition v. U.S. Dept. of Energy, 631 F.3d 1072 (9th Cir. 2011) (NEPA: substantial questions require EIS; proper EA/decision)
- Native Ecosystems Council v. Weldon, 848 F.Supp.2d 1207 (D. Mont. 2012) (NEPA review standard: avoid arbitrary or capricious analysis)
- Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000) (NEPA predetermination hurdle; irreversible commitments)