Native Ecosystems Council v. Leanne Marten
883 F.3d 783
| 9th Cir. | 2018

Background

  • The U.S. Forest Service approved the Lonesome Wood Vegetation Management 2 Project (Lonesome Wood 2) to reduce wildfire risk near Hebgen Lake in Gallatin National Forest by thinning ~2,500 acres (including ~495 acres old growth), some temporary roads, and prescribed burning.
  • The project underwent an EA in 2007 (DN/FONSI), withdrawal, then an FEIS and ROD in 2012 after grizzly bears were relisted; plaintiffs Native Ecosystems Council and Alliance for the Wild Rockies sued alleging violations of the ESA, NFMA, NEPA, and APA.
  • District court initially enjoined the project for inadequate Biological Opinions (BiOps) under ESA; after multiple remands and revised BiOps addressing site-specific effects (April 2016), the court dissolved the injunction and allowed the project to proceed.
  • Primary legal disputes: (1) whether the Lynx Amendments’ Wildland-Urban Interface (WUI) exemption (for fuel treatments near communities) violates the ESA’s “best scientific...data available” requirement (plaintiffs relied heavily on a 2014 master’s thesis by Kosterman); (2) whether the Forest Service complied with NFMA Forest Plan requirements (species viability and monitoring of Management Indicator Species); and (3) whether the FEIS satisfied NEPA’s “hard look” requirement (accuracy and completeness of information about goshawk, moose, and pine marten data).
  • The Ninth Circuit reviewed agency actions under the APA’s arbitrary-and-capricious standard, deferred to agency scientific judgments where appropriate, and affirmed the district court’s dissolution of the injunction and summary judgment for the Forest Service.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
1. ESA — WUI exemption validity / best available science Kosterman thesis shows Lynx habitat/reproduction relationships that undermine the WUI exemption; Forest Service must revise or eliminate exemption Forest Service considered the thesis, found it informative but not sufficiently developed or directly translatable to require reversing the 2012 ROD; FWS issued site-specific BiOps finding no jeopardy Court upheld agency judgment; thesis does not compel reevaluation of project approval now; deference to agency expertise and forthcoming reinitiated consultation process appropriate
2. ESA — site-specific consultation (BiOps) adequacy Earlier BiOps relied improperly on exemption criteria without site-specific analysis Updated April 2016 BiOps specifically analyzed Lonesome Wood 2 and found no jeopardy to lynx or grizzly Court held April 2016 BiOps adequate and dissolved injunction
3. NFMA — Forest Plan consistency (species viability) Project violates Forest Plan goal to provide habitat for viable populations and incorporates rescinded 1987 viability regulation Forest Plan goals are not binding prohibitions and do not incorporate the 1987 viability rule here; Lonesome Wood 2 is not incompatible with plan goals Court rejected plaintiff’s arguments; no violation shown
4. NEPA — FEIS accuracy / “hard look” re MIS and other reports FEIS/ROD mischaracterized peer-reviewed and internal reports (Patla, Tyler) and incorrectly stated MIS trends (goshawk and pine marten), undermining informed decisionmaking Forest Service responses and underlying analyses were adequate; one factual error about MIS trend wording was acknowledged but not prejudicial to the analysis or public understanding Court found most disclosures adequate but agreed the statement that MIS were "stable to increasing" was wrong; error was not fatal to the FEIS’s "hard look" determination

Key Cases Cited

  • Defenders of Wildlife v. Zinke, 856 F.3d 1248 (9th Cir. 2017) (APA arbitrary-and-capricious standard for ESA/NFMA/NEPA review)
  • Cottonwood Environmental Law Center v. U.S. Forest Service, 789 F.3d 1075 (9th Cir. 2015) (reinitiation of consultation required after changed critical-habitat designation)
  • Kern County Farm Bureau v. Allen, 450 F.3d 1072 (9th Cir. 2006) (agency cannot disregard better available scientific evidence)
  • San Luis & Delta-Mendota Water Authority v. Locke, 776 F.3d 971 (9th Cir. 2014) (best-available-data does not require agencies to create new data)
  • San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (9th Cir. 2014) (deference to agency scientific determinations)
  • Native Ecosystems Council v. U.S. Forest Service, 428 F.3d 1233 (9th Cir. 2005) (Forest Plan interpretation and NFMA review principles)
  • Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002) (when to challenge Forest Plan practices in connection with specific final agency actions)
  • Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) (arbitrary-and-capricious standard explained for NEPA review)
  • WildEarth Guardians v. Montana Snowmobile Association, 790 F.3d 920 (9th Cir. 2015) (agency must provide accurate data supporting NEPA analyses)
  • Baltimore Gas & Electric Co. v. Natural Resources Defense Council, 462 U.S. 87 (U.S. 1983) (courts defer to agency expertise on scientific matters)
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