Native Ecosystems Council v. Weldon
848 F. Supp. 2d 1207
D. Mont.2012Background
- Beaver Creek Landscape Management Project on Custer National Forest involves 1,487 acres of logging, 35.2 miles of road work, and 8,054 acres of prescribed burning with a 6–10 year implementation horizon.
- Plaintiffs challenge NFMA and NEPA compliance, alleging elk habitat protection, old-growth retention, goshawk habitat, and stormwater permit issues.
- Plaintiffs filed two administrative appeals and lost; suit filed July 8, 2011.
- Defendants move for summary judgment and seek to strike 15 exhibits not in the administrative record, arguing lack of exhaustion and improper supplementation.
- Court grants in part and denies in part, remands for supplemental EIS addressing deficiencies, and grants the strike of Exhibits 1–15; litigation regarding several claims is narrowed to specific NEPA/NFMA issues.
- Court remands to Forest Service to prepare a supplemental EIS and denies certain exhaustion and record-supplementation contentions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Elk habitat analysis under NEPA/NFMA | Elk-habitat indicators (canopy cover/road density) are mandatory to sustain elk viability. | Some indicators are advisory; project analyzed using acceptable proxies. | Elk-habitat analysis remanded for supplemental EIS; canopy-cover indicators are treated as mandatory, but road-density analysis requires revision. |
| Road density analysis and unit of analysis | Forest Service failed to use elk herd home-range and did not justify unit choice. | Agency discretion permits choice of analysis scale; no error in unit selection. | NEPA violation for not explaining unit-of-analysis choice; remand for reasoned discussion in supplemental EIS. |
| Goshawk and old-growth habitat protections | Project violates NFMA/NEPA by lacking forest-wide old-growth standard and inadequate goshawk habitat protection. | Forest Plan provides appropriate old-growth standards; project improves habitat; no NFMA violation. | Court grants summary judgment for the Forest Service on old-growth/goshawk issues; project complies with Forest Plan standards and may improve habitat. |
| Stormwater discharge permits and NEPA notice | Draft EIS failed to identify possible NPDES permits and to solicit state comments; NEPA violated. | Statutory exception may apply temporarily; permit needs uncertain post-2012 action. | NEPA violated; must identify permits and solicit Montana DEQ comments; remand for supplemental EIS. |
| Exhaustion of claims | Plaintiffs exhausted administrative remedies; claims should be heard. | Some claims not meaningfully raised in appeals; not exhausted. | Exhaustion satisfied for the claims raised; court rejects exhaustion as a bar to proceeding. |
| Exhibits 1–15 and record supplementation | Exhibits should be part of the record; supplementation not timely pursued. | Exhibits not part of administrative record; supplementation not proper. | Exhibits stricken; no judicial notice; supplementation not warranted; no reliance on those exhibits. |
Key Cases Cited
- Lands Council v. McNair, 629 F.3d 1070 (9th Cir. 2010) (viability analysis may use proxy habitat; must describe habitat and measurement method)
- Ecology Ctr. v. Castaneda, 574 F.3d 652 (9th Cir. 2009) (binding guidance on whether guidelines become mandatory when used to show NFMA compliance)
- Idaho Sporting Cong. v. Rittenhouse, 305 F.3d 957 (9th Cir. 2002) (unit-of-analysis choice must be reasoned and not arbitrary)
- Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005) (habitat viability and analysis under NFMA; enforcement of habitat standards)
- Wildwest Institute v. Bull, 547 F.3d 1174 (9th Cir. 2008) ( forest plan old-growth standards; assessment of old-growth standards in project context)