330 F. Supp. 3d 1218
D. Mont.2018Background
- Forest Service Chief designated ~4.955 million acres in Montana under the 2014 HFRA Farm Bill amendment; Smith Shields Project (19,000-acre area, ~1,660 acres treated) lies within the Designation and targets insect/disease and fuel reduction.
- Smith Shields was approved under HFRA categorical exclusion authorities with public scoping; planned treatments include regeneration and intermediate harvests and some temporary roads; no old-growth harvest proposed.
- Gallatin Forest Plan "Clean Up Amendment" (2015) revised 56 plan goals/standards, notably Amended Standard 6(a)(5) (elk hiding cover) and 6(c)(2) (old growth); the Amendment was supported by an EA and a FONSI.
- Plaintiffs (Native Ecosystems Council; Alliance for the Wild Rockies) sued, alleging violations of NEPA, ESA, NFMA, HFRA, and APA; they challenged (1) the Designation, (2) approval of Smith Shields via categorical exclusion, and (3) the Clean Up Amendment.
- Court excluded extra-record expert declarations (except portions used only to establish standing), denied plaintiffs’ motion to supplement, and granted summary judgment to defendants, upholding the Designation, Project approval, and Amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Chief's Landscape Designation was a final "major Federal action" requiring an EIS | Designation is a major federal action that triggers NEPA because it enables expedited projects and affects large landscapes | Designation is nonfinal/administrative; it does not commit resources or authorize projects and future projects are speculative | Held: Designation is not a final action requiring NEPA; EIS not required at designation stage |
| Whether the Smith Shields Project/Designation violated ESA/HFRA/NEPA re: Canada lynx connectivity and need for EA | Project may disrupt lynx connectivity; uncertainty about corridors means categorical exclusion inappropriate and formal consultation or EA required | FWS and FS considered connectivity and best available science (including cited studies); concluded may affect but not likely to adversely affect lynx; no critical habitat in Project area | Held: Agencies considered connectivity and relevant science; FWS/FS determinations were not arbitrary; categorical exclusion was permissible |
| Whether Clean Up Amendment (6(a)(5)) unlawfully changed hiding-cover requirements and required an EIS | Amendment substantively reduces elk hiding-cover protections (changing scale, denominator, and methodology) and lacks best available science; cumulative effects require an EIS | Amendment relies on Collaborative Recommendations and applicable science; change refines metrics (40% canopy proxy) and retains two-thirds retention concept; public input and EA were adequate | Held: Plaintiffs exhausted administrative remedies; but the Amendment relied on sufficient science and analysis; no EIS required and amendment not arbitrary |
| Whether Amendment (6(c)(2)) and Smith Shields violate old-growth requirements, HFRA maximize-retention, or soil standards | Amendment alters scale for old-growth calculation and Project/decision fail to maximize old growth retention and may violate soil disturbance limits | Amendment continues to "strive" for 10% old growth at appropriate scale; Project avoids old-growth treatments, retains large/healthy trees as appropriate; soil limits respected by restrictions and are not Forest Plan requirements | Held: Amendment and Project comply with NFMA/HFRA/NEPA; no violation of old-growth or soil standards found |
Key Cases Cited
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (arbitrary and capricious standard for agency action)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA "hard look" and procedural requirements)
- Friends of Southeast's Future v. Morrison, 153 F.3d 1059 (NEPA: irreversible/resource commitment and timing of EIS)
- Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125 (limits on supplementing administrative record)
- San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971 (deference to agency scientific judgments)
- Hapner v. Tidwell, 621 F.3d 1239 (interpretation of elk hiding-cover standards under Forest Plan)