ORDER
Before the Court are cross-motions for summary judgment in this environmental case centered on the East Reservoir Forest Restoration Project southeast of Libby, Montana (“the Project”). For the reasons explained below, the Court grants the motions of Defendants and Defendant-Inter-venors and denies Plaintiffs motion.
Background
Hugging the east shore of Lake Kooean-usa Reservoir in Montana’s temperate northwest corner, the area encompassed by the Project measures 92,407 acres in size. The United States Forest Service (“Forest Service”) manages 85% of the Project area, with the remaining acreage managed by other federal agencies as well as state and private interests. The Project area is “heavily roaded from past management activities,” and “has also been heavily logged.” (Doc. 1 at 7.)
The Project area is transected by five east-west flowing drainages: Fivemile Creek, Warland Creek, Cripple Horse Creek, Canyon Creek, and Dunn Creek. These drainages are deeply incised by their streams and the ridgelines have fairly gentle slopes. The drainage side slopes are generally steep. The Project area ranges in elevation from a low of about 2,200 feet along the Kootenai River to 6,051 feet atop Davis Mountain, the head of Fivemile Creek. The south and west aspects of the Project area have numerous small natural openings in the primarily ponderosa pine and Douglas fir canopy. The north and east aspects have a nearly continuous canopy of Douglas fir, larch, and lodgepole pine. (FS 029267.
Grizzly bear and Canada lynx, both threatened species under the Endangered Species Act (“BSA”), 16 U.S.C. §§ 1531, 1532(20), are present within the Project area. Moreover, the Project area contains 18,428 acres of the Tobacco Bears Outside the Recovery Zone (“BORZ”) polygon, one of a number of similar zones developed by the Forest Service to analyze grizzly bear occurrence outside of established recovery zones. (FS 005803.). Approximately 30,463 acres of the total Project area also over
The Project area provides a variety of recreational opportunities, and is very popular across a broad spectrum of users. Recreation activities are varied and occur year round. Activities include snowmobiling, hunting, fishing, off-highway vehicle use, hiking, scenic viewing, wildlife viewing, camping, and gathering of forest products such as berries and firewood. There are several major rock forms visible in the Project area, especially along Lake Koo-canusa Reservoir, which are popular with climbers. (Id.)
The Project area is relatively devoid of residential development other than scattered inholdings. There is a commercial resort and marina on the west side of the Project area where Cripple Horse Creek enters Lake Kooeanusa. The southern third of the Project area is bisected by a high-voltage electrical transmission line located in an approximately 150 to 200 foot wide right-of-way. The transmission line disperses power generated at the Libby Dam to regional markets, including Kalis-pell, Whitefish, Libby, and communities surrounding Flathead Lake. There is a significant associated transformer facility located at the southwest corner of the Project area, within the Project area. Montana Highway 37 and Lake Kooeanusa form the western boundary of the Project area.
The Project is the result of over four years of planning and input, and numerous groups and.governmental units took part in shaping the final implementation plan. On October 27, 2014, Defendant Christopher Savage, Kootenai National Forest Supervisor, signed the Record of Decision (“ROD”) announcing that the Forest Service would implement Alternative 2 from the Project Final Environmental Impact Statement (“FEIS”), with modifications.
The ROD describes the following vegetation management activities: (1) timber harvest and associated fuel treatment on approximately 8,845 acres dispersed over the Project area, including intermediate harvest on approximately 5,387 acres and regeneration harvest on approximately 3,458 acres; (2) precommercial thinning on approximately 5,775 acres; (3) planting conifer seedlings on approximately 3,346 acres; (4) prescribed fire treatments on approximately 4,257 acres to reduce hazardous fuel loading; and (5) burning and/or slashing on approximately 10,049 acres to enhance wildlife habitat. (FS 029259-60.)
The ROD also describes the following road and access-related management activities: (1) maintenance to 176.4 miles of haul roads prior to and through the duration of timber harvesting activities; (2) construction of approximately -9.25 miles of new roads and 4.26 miles of temporary roads to accomplish harvest activities; (3) access changes from seasonal to year-long, open access on approximately 1.79 miles of road; (4) access changes from motorized to non-motorized on five trails totaling 27 miles; (5) watershed rehabilitation, including decommissioning 5.93 miles of road and storing approximately 16 miles of road; (6) adding approximately 13 miles of “undetermined” roads to the National Forest System Road System (“NFSRS”), while decommissioning another 6.24 miles of “undetermined” roads; and (7) creating a 2.75 mile non-motorized loop trail between Lake Kooeanusa and Montana Highway 37 near the mouth of Cripple Horse Creek. (FS 029260.)
Plaintiff filed its Complaint in this case on May 11, 2015, alleging the following five claims for relief: (1) the Project proposes a net increase in road density within the
Legal Standard
I. Summary Judgment
A party is entitled to summary judgment if it can demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc.,
II. Administrative Procedure Act
Courts review claims regarding the ESA under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. See Native Ecosystems Council v. Dombeck,
only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Gardner v. U.S. Bureau of Land Mgmt.,
However, this presumption does not require courts to “rubber stamp” administrative decisions “they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” Bureau of Alcohol, Tobacco & Firearms v. Fed. Labor Relations Auth.,
Analysis
I. Applicable laws
A. ESA
Section 7 of the BSA requires an agency to ensure that no discretionary action will “jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.12(a). In evaluating compliance with the no-jeopardy requirement, an “agency shall use the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2). “Only after the [agency] complies with§ 7(a)(2) can any activity that may affect the protected [species] go forward.” Pac. Rivers Council v. Thomas,
The Forest Service’s first step in complying with Section 7 is to obtain from the Fish & Wildlife Service “a list of any listed or proposed species or designated or proposed critical habitat that may be present in the action area.” 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12(c)-(d) (emphasis added). If the Fish & Wildlife Service advises that a listed species or critical habitat may be present, the Forest Service must complete a biological assessment to determine if the proposed action “may affect” or is “likely to adversely affect” the listed species. 16 U.S.C. § 1536(c)(1); 50 C.F.R. §§ 402.12 (f), 402.14(a), (b)(1); Forest Guardians v. Johanns,
A determination by the Forest Service in a biological assessment that an action “may affect” a listed species or critical habitat gives rise to a consultation requirement under section 7 of the ESA. Karuk Tribe of Cal. v. U.S. Forest Serv.,
There are two forms of consultation: formal and informal. Karuk Tribe
Section 9 of the ESA prohibits “take” of any listed species. 16 U.S.C. § 1538(a)(1)(B). “Take” includes “harassment” of a listed species by means of “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns.” 16 U.S.C. § 1532(19); 50 C.F.R. § 17.3. If an agency action is likely to cause take but not jeopardize the species, the Fish & Wildlife Service may issue an incidental take statement, which establishes the expected impact to the species, reasonable and prudent measures necessary to minimize take, and terms and conditions for implementing those measures. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 401.12Q). If an agency complies with the terms and conditions of an incidental take statement, it is exempt from ESA Section 9 liability. 50 C.F.R. § 402.14(9(5).
B. NEPA
“NEPA is a procedural statute that does not ‘mandate particular results but simply provides the necessary process to insure that federal agencies take a hard look at the environmental consequences of their actions.’ ” High Sierra Hikers Ass’n v. Blackwell,
An agency may comply with NEPA in one of three ways. The agency may prepare an EIS, prepare a less extensive EA and make a finding of no significant impact, or document that the proposed action falls within an established categorical exclusion. “NEPA requires the preparation of an EIS for ‘major Federal actions significantly affecting the quality of the human environment.’ ” Cascadia Wildlands v. Bureau of Indian Aff.,
While courts must “strictly interpret the procedural requirements in NEPA and the CEQ regulations,” Churchill Cnty. v. Norton,
C. NFMA
NFMA requires National Forest planning at two levels: the forest level and
At the individual project level, NFMA. requires that each individual project be consistent with the governing Forest Plan. Great Old Broads for Wilderness v. Kimbell,
The Forest Service’s interpretation and implementation of its own Forest Plan is entitled to substantial deference. Siskiyou Reg’l Educ. Project v. U.S. Forest Serv.,
II. Plaintiffs claims
At the outset, the Court will address Defendants’ contention that several of the claims in the Complaint are waived due to Plaintiffs failure to raise the particular issues in the administrative setting. While the Court recognizes the vital role of the administrative process when it comes to projects such as this and would hope that all stakeholders would meaningfully participate in the process, which hopefully will lead to efficient use of government resources, the Court will address the merits of Plaintiffs claims in this instance, where the waiver argument rests on the government’s assessment of whether Plaintiffs comments during the decision-making process were specific and detailed enough. (See e.g. Doc. 33 at 13 (“While Plaintiffs voluminous comments may have addressed roads generally and included a complaint that the Access Amendments violate the law, ... Plaintiff never articulated the specific concerns raised here”).) If there is room for reasonable disagreement as to whether Plaintiff exhausted administrative remedies before filing its Complaint, then the Court prefers to address the merits of the substantive claims.
The Court will address Plaintiffs claims in the order in which they were presented in Plaintiffs opening brief. Ultimately, none of the claims warrant the relief Plaintiff requests, and Defendants are entitled to summary judgment in this case.
A. Bull trout
Plaintiff contends that the Forest Service erred with respect to bull trout by: (1) failing to include the species in the biological assessment for the Project, despite the alleged fact that bull trout “may be present” in the Project area; and (2) concluding that the Project would have “no effect” on bull trout. The Forest Service counters that, in the complete absence of evidence showing that bull trout exist within the Project area, it was neither arbitrary nor capricious to conclude that the Project would have no effect on bull trout. The record supports the Forest Service on this claim.
As to the first part of Plaintiffs claim, the Forest Service must include in its biological assessment for the Project only those threatened or endangered species identified by the Fish & Wildlife Service which “may be present in the area of
As to the second part of Plaintiffs claim, the Forest Service’s conclusion that the Project will have no effect on bull trout can only be overturned if the Forest Service had “reason to believe that [bull trout] may be present in the area affected by [the] project and that implementation of [the Project] will likely affect [bull trout].” 16 U.S.C. § 1536(a)(3); see also 50 C.F.R. § 402.14(b)(Z); Karuk Tribe of Cal.,
Bull Trout are known from Lake Koo-canusa. The fish in the reservoir are migratory and move into streams for spawning and rearing primarily in the Elk River, Canada. Fivemile Creek in the analysis area has mention of bull trout use which is anecdotal and from past professional judgment and [personal] communications. However, during numerous electrofishing surveys by Libby Ranger District personnel and [the Fish & Wildlife Service], only large numbers of brook trout (and a few rainbows) were found in the perennial segment of the stream. Any use of the drainage for spawning by bull trout would result in hybrid fish and the lack of actual evidence of bull trout in the drainage leads to the conclusion that bull trout do not use the drainage for spawning and rearing. An occasional fish may migrate into the system but conditions for bull trout in the drainage do not contain suitable habitat. Therefore, for this document, bull trout will not be considered present in tributary streams and not affected by the proposed project.
B. Grizzly bear
Plaintiff makes three interrelated arguments with respect to the grizzly bear. First, Plaintiff alleges that the Project violates the Access Amendments because it results in a net increase of 4.15 linear miles of road within the Tobacco BORZ. Second, Plaintiff alleges that the Forest Service’s failure to recognize this net increase renders erroneous its and the Fish & Wildlife Service’s conclusion that the Project is not likely to adversely affect grizzly bear. Third, Plaintiff alleges that the unacknowledged increase in linear road miles will result in take beyond that permitted in the Access Amendments, pursuant to 16 U.S.C. § 1539(a)(Z )(B). Defendants counter that Plaintiffs tiered argument rests on incorrect math, and that the Project in fact decreases linear road miles within the Tobacco BORZ by three-tenths of a mile. The Court agrees with Defendants that the Project does not result in the purported increase. Moreover, because this conclusion obviates Plaintiffs second and third sub-arguments, the Court will grant summary judgment in Defendants’ favor on this claim.
Recognizing that “controlling and directing motorized access is one of the most important tools in achieving habitat effectiveness and managing grizzly bear recovery,” and “that existing forest plans may not [have] provide[d] sufficient direction for the management of roads,” the Forest Service developed the Access Amendments in 2011 in concert with the Interagency Grizzly Bear Committee. (FS 027704.) The Access Amendments modified the Koote-nai National Forest Plan, and thus influence the grizzly bear analysis associated with the Project.
The Access Amendments created the Tobacco BORZ and six other similar regions, measuring in size from 33,869 to 287,240 acres, for the purpose of monitoring areas outside designated recovery zones which nevertheless saw “recurring” grizzly bear use. (FS 027488.) The Access Amendments contained the following provision pertinent to the seven BORZ:
The Forests shall ensure no increases in permanent linear miles of open road on National Forest System lands in any individual BORZ, above the baseline conditions identified in [the Access Amendments Biological Opinion] .... Potential increases in linear miles of open roads must be compensated for with in-kind reductions in linear miles of open road concurrently with, or prior to, project implementation within the same BORZ.
(FS 027486.) Baseline conditions for the Tobacco BORZ included 1,123.9 total linear miles of roads and total linear miles of open roads “on National Forest System Lands.” (FS 027488.)
Central to resolving Plaintiffs argument on this claim is the issue of whether the Access Amendments baseline conditions, as applied to the Project area, include so-called “undetermined” roads present in this part of the Kootenai National Forest. In the DEIS, the Forest Service noted that it had inventoried approximately 20 miles of undetermined roads in the Project area. (FS 001586-87.) Undetermined roads are those “for which the purpose and need was undetermined,” and which “cross [National Forest System] lands, but for various reasons, had never been included as a part of the [NFSRS].” (FS 001589.)
Given this definition and the language of the DEIS, Plaintiff claims that the Access Amendments baseline for the Tobacco
Defendants counter that the Access Amendments baseline included undetermined roads in this area, and thus calculate a 0.3-mile decrease in linear road miles within the Tobacco BORZ by subtracting 2.5 miles of both system roads and undetermined roads planned for decommissioning from the 2.2 miles of new roads to be built pursuant to the Project. As to the 2.6 miles of undetermined roads to be added to the NFSRS, the Forest Service argues that the change in status does not render the undetermined roads “new” for accounting purposes-the undetermined roads were already included in the baseline.
Though circumstantial, several pieces of evidence in the record support the conclusion that the baseline included the undetermined roads at the heart of the parties’ discrepancy. First, as Defendant-Interve-nors’ counsel pointed out at the motions hearing, both the DEIS and FEIS describe undetermined roads within the Project area using road identification num-. bers. (See e.g. FS 001178-79; 029375.) This certainly suggests that the Forest Service was aware of these roads prior to catalogu-ing Project-related roads, and belies Plaintiffs contention that undetermined roads are “unauthorized” and “user-created.” (Doc. 17 at 15.) Indeed, the Forest Service defines an “unauthorized road” as “a road ... that is not a forest road ... and that is not included in a forest transportation atlas.” 36 C.F.R. § 212.1. The undetermined roads in the Project area are both “forest roads,” that is, they are “wholly ... within ... and serving the National Forest System” and have been deemed “necessary for the protection, administration, and utilization of the National Forest System and the use and development of its resources,” and “included in a forest transportation atlas,” as evidenced by maps in the ROD. Id.
Second, and dovetailing with the notion that the Forest Service was aware of the presence of undetermined roads within the Project area and the Tobacco BORZ, the Access Amendments describe baseline linear miles of roads occurring “on National Forest System Lands.” (FS 027488.) This phrasing suggests that the baseline accounted for all roads on National Forest System lands within the seven BORZ, not just NFSRS roads.
Third, more than one source in the record references undetermined roads in a context which suggests that “undetermined” is an ownership or access-type status code. For example, the Project Travel Analysis Report contains a table listing the number of miles of existing roads of six different “management or ownership” categories within the Project area. (FS 008169.) The categories include “undetermined” roads, as well as roads administered by the Montana Department of Transportation, U.S. Army Corps of Engineers, Montana Department of Natural Resources Conservation, and private interests and companies. (Id.) Additionally, the DEIS lists the specific undetermined roads proposed to be added to the system through the Project, and lists the reasons why each road segment is significant. (FS 001168.) Once the roads are added, they
Ultimately, in light of the record evidence on this issue, the Court cannot say that the Forest Service’s consideration of undetermined roads within the Tobacco BORZ is “plainly erroneous or inconsistent with the directive[s]” contained within the Kootenai National Forest Plan and the Access Amendments. Siskiyou Reg’l Educ. Project,
C. Canada lynx
Similar to the grizzly bear analysis, Plaintiffs arguments with respect to lynx are threefold, though in this instance each argument stands on its own. First, Plaintiff contends that the Forest Service must reinitiate consultation with the Fish & Wildlife Service regarding lynx critical habitat before proceeding with any logging-related project within that habitat, thereby halting all projects until reconsul-tation occurs. Second, Plaintiff argues that the Forest Service’s conclusion that the Project is “not likely to adversely affect” lynx is arbitrary and capricious. Third, Plaintiff claims that the Forest Service has not complied with the ALL SI habitat connectivity standard in the Lynx Amendment. The Court will address each basis in turn.
1. Reinitiating consultation before Project implementation
Plaintiffs argument with respect to rein-itiating consultation- stems from the Ninth Circuit’s recent holding in Cottonwood Environmental Law Center v. U.S. Forest Service,
In Salix, this Court determined that the designation of critical habitat triggers the need for reinitiation of consultation under Section 7(a)(2) of the BSA, and that when the Fish & Wildlife Service designated lynx critical habitat in 2009, the Forest Service was required to reinitiate consultation on the Lynx Amendment.
In Cottonwood, the Ninth Circuit reviewed this Court’s determinations in Sa-lix pertaining to the plaintiffs standing, whether the case was ripe, and whether the Fish & Wildlife Service’s revised lynx critical habitat designation triggered the need for the Forest Service to reinitiate ESA consultation on the Lynx Amendment.
Plaintiff seizes on this language as an indication by the Ninth Circuit that this Court’s practice of accepting project-specific lynx critical habitat analyses if they stand independently from the Lynx Amendment is erroneous. For several reasons, the Court disagrees. First, the Cottonwood court’s language regarding why a project-specific critical habitat analysis is insufficient is stated in the abstract-the court did not squarely address this Court’s rationale as to why such an analysis might be sufficient, but instead indicated that, categorically, a project-specific analysis does not eviscerate a plaintiffs Article III standing with respect to programmatic challenges. Put another way, the court did not comment on the merits of this Court’s approach, but merely on why the government’s standing argument in that case failed. Second, the final line of Judge Pre-gerson’s partial dissent in Cottonwood-stating that he “would grant the Appellant’s request for an injunction [of the projects at issue] pending compliance with the ESA’s Section 7 consultation requirements”-plainly indicates what the panel majority was not saying in its opinion.
Based on the foregoing, the Court concludes that Cottonwood does not present a per se rule prohibiting timber projects from proceeding pending the Forest Service and Fish & Wildlife Service reinitiat-ing consultation on the Lynx Amendment. Consequently, the Court will deny Plaintiffs motion for summary judgment on this point, and maintain its consistent approach on this issue.
2. “Not likely to adversely affect” determination
Plaintiff articulates a two-part argument regarding the determination of the Forest Service and the Fish • & Wildlife Service that the Project is “not likely to adversely affect” the lynx
In its 2009 rule delineating lynx critical habitat in the United States, the Fish & Wildlife Service identified the lynx PCE as “boreal forest landscapes supporting a mosaic of differing successional forest stages, containing the following subelements: snowshoe hares and their preferred habitat, adequate winter snow conditions, den-ning habitat with abundant coarse woody debris, and ‘matrix’ habitat which facilitates lynx movement and dispersal and connects areas of suitable habitat.” (FS 005813.) The Forest Service considered each one of the PCE sub-elements in table form in the biological assessment for the Project (FS 005819), and analyzed the PCE in significantly greater detail in the FEIS. (FS 029367-70.) Notably, as to the first and fourth sub-elements, the Forest Service modified the Project so that “[m]a-ture multistory and young forests that provide habitat conditions preferred by snowshoe hares [would not be] treated,” and confined treatment of matrix habitat to “the lower elevation boundary of the LAU.” (FS 029368, 029370.) Thus, with respect to the first part of Plaintiffs claim here, the Forest Service has demonstrated that “the affected critical habitat will remain functional and that the primary con
The Forest Service has also demonstrated minimal Project effects upon old growth and mature forest sections. As to old growth; the Forest Service stated the following in the ROD:
Concern regarding the impact to old growth stands is addressed by dropping proposed vegetation treatments in old growth. Alternative 2 with modifications maintains fuel treatments (173 acres) in some old growth such as on dry land types. The purpose of prescribed fire in old growth, as identified in the forest plan, is to maintain old growth characteristics. These proposed treatments will occur in dry land old growth such as south aspects of dry habitats. Treatments to be implemented are designed to reduce ladder fuels through a combination of slashing and prescribed burning. Reducing ladder and surface fuels will maintain or enhance some of the dry land old growth attributes and help ensure the survivability of the older, large diameter trees in these individual stands.
The overall goal is to work towards returning these stands to their appropriate fire regime and increased fire resiliency.
(FS 029264.) While Plaintiff correctly cites Squires et al. (2010) for the proposition that lynx prefer more mature stands during winter, the authors of that study also noted that lynx in Montana “selected mature, multistoried forests ... composed of mixed conifers that included lodgepole pine, Douglas-fir, and western larch, but predominately consisted of Englemann spruce and subalpine fir in the overstory and midstory.” (FS 029091.) This preference is consistent with a wetter, higher elevation mixed stand, and thus the old growth treatments proposed with the Project-prescribed fire in south-aspect dryland types-will not affect preferred lynx winter habitat.
Moreover, as to Plaintiffs contention that “the Project allows for clearcutting of 1,269 acres of mature boreal forest,” the Forest Service concluded in the biological assessment that the acreage consisted of “general mature, stem-exclusion habitat within the LAU which may serve in the same capacity as ‘matrix’ habitat,” but that “[d]ue to the scattered and random nature of the proposed treatment units and that only 1,269 acres (4.2%) out of 30,463 LAU acres would be treated, effects to the juxtaposition of boreal and matrix habitat would be minimal
Finally, as to Plaintiffs claim that the Project will remove wildlife movement corridors, the record is clear that “[t]here are ho identified linkage corridors ... in the [Project area] or potentially impacted LAUs or adjacent LAUs” (FS 005815 (emphasis added)), and nevertheless, as discussed below, the Project complies with
Based on the foregoing, the Forest Service and Fish & Wildlife Service reasonably determined that the Project was “not likely to adversely affect” the lynx. See 50 C.F.R. § 402.13; Conservation Congress v. Finley,
3. Compliance with the Lynx Amendment’s ALL SI standard
Plaintiffs final lynx-related claim-that the Project fails to comply with the Lynx Amendment’s ALL SI habitat connectivity standard-is essentially answered by the Court’s analysis regarding the agencies’ “not likely to adversely affect” determination. The record demonstrates that the amount and distribution of treatment activities in lynx habitat does not run afoul of the standard’s mandate.
The Lynx Amendment accounts for lynx habitat connectivity through the ALL SI standard. The standard requires that any “[n]ew or expanded permanent development and vegetation management projects must maintain habitat connectivity in an LAU and/or linkage area.” (FWS 001072 (emphasis added).) To “maintain” according to the Lynx Amendment “means to provide enough lynx habitat to conserve lynx ... [i]t does not mean to keep the status quo.” (FWS 001083.) The Lynx Amendment further defines “habitat connectivity” as “consist[ing] of an adequate amount of vegetative cover arranged in a way that allows lynx to move around.” (FWS 001082.) Connectivity may be provided by “[njarrow forested mountain ridges or shrub-steppe plateaus,” as well as by “wooded riparian areas ... across open valley floors.” (Id.)
Simply stated, the Project will leave more than enough lynx habitat intact following harvest activities to both conserve lynx and permit lynx to move through the area. (See FS 001604; 001612-13.) Because there are no linkage areas within the Project area or immediately surrounding it (FS 001497), the question here is whether connectivity is maintained within the Cripple LAU. The Fish & Wildlife Service confirmed as much through informal consultation (FWS 000004), and the record makes clear that the Forest Service engaged in a unit-by-unit lynx habitat analysis during preparation of the DEIS. (FS 005955-56.) Because the Forest Service complied with the Lynx Amendment’s ALL SI standard, the Court will grant Defendants’ motion for summary judgment on this issue.
D. Wildlife security, roads, and trails
Finally, Plaintiff contends that the Forest Service’s analysis with respect to trail and road closures, and the agency’s subsequent representation regarding increased wildlife security, is misleading and in violation of NEPA. Specifically, Plaintiff argues that the Forest Service: (1) misrepresented the total linear miles of trails slated for closure, because the particular trails at issue had been closed through previous timber sale projects; (2) improperly concluded that adding undetermined roads to the NFSRS would not result in increased road density; and (3) failed to disclose the fact that it planned to re-categorize approximately 27 miles of “decommissioned” roads to “intermittent stored service” roads. Defendants counter that the decision documents adequately disclosed the Forest Service’s treatment of these issues, and so the agency complied with NEPA. The Court agrees with Defendants on these issues.
As to the first sub-argument, Plaintiff cites a record document entitled “TRAILS OPEN TO MOTORIZED WITHIN THE
As to the second sub-argument, the Court’s earlier analysis regarding undetermined roads in the Tobacco BORZ answers the question of whether the Forest Service failed to disclose an increase in road density Project-wide—the Court has found that undetermined roads were part of the Project baseline road density, which means that including undetermined roads now does not increase density. Moreover, Plaintiffs contention that the Forest Service failed to define “undetermined road” is without merit. The DEIS clearly described what undetermined roads are, why they are proposed for addition to the NFSRS, and the benefits of doing so. (FS 001589; 001591.)
Finally, as to the third sub-argument, Plaintiffs contention that the Forest Service failed to disclose its re-categorization of 27 miles of Project-area roads from “decommissioned” to “intermittent stored service” appears to be unfounded. While record documents show that Forest Service transportation personnel discovered the classification error and acknowledged that re-categorizing the roads would result in increased road density in the Project area, the Forest Service noted that “[s]ince one ... objective! ] is to reduce road density, the. list of roads proposed for storage in the [Project] will be looked at ... and will be considered for decommissioning (instead of storage) so there will be no net increase in total road densities.” (FS 028271.) Moreover, the Project Travel Analysis Report, repeatedly referenced in the DEIS (See, e.g., FS 001589-90), accounts for and discloses the numerous road segments in the Project area “incorrectly in [the Forest Service database] as [decommissioned, should be [intermittent stored service].” (FS 008179-84.) In short, and similar to the motorized trails sub-argument above, the Forest Service discovered- and corrected an inventory mistake, and sufficiently disclosed the outcome in the DEIS.
Based on the foregoing, the Court will deny Plaintiffs motion for summary judgment with respect to trail and road disclosures, and will grant Defendants’ motion.
The East Reservoir Project represents one of the larger forest resource management projects to be considered by this Court, and the record reflects that the Forest Service and Fish & Wildlife Service engaged in a review of potential impacts commensurate with the Project’s scope. Plaintiffs challenges to the agencies’ anal-yses and conclusions with respect to bull trout, grizzly bear, lynx, and transportation infrastructure do not warrant the relief Plaintiff requests, and, accordingly,
IT IS ORDERED that:
(1)Plaintiffs motion for summary judgment (Doc. 16) is DENIED.
(1) Defendants’ motion for summary judgment (Doc. 32) is GRANTED.
(2) Defendant-Intervenors’ motion for summary judgment (Doc. 39) is GRANTED.
(4) The Clerk of Court shall enter judgment in favor of Defendants and CLOSE this case.
DATED this 19th day of July, 2016.
Notes
. Citations to the administrative record will consist of: (1) an "FS” prefix for the Forest Service portion of the record, or an "FWS” prefix for the United States Fish & Wildlife Service portion; and (2) the page number in the particular record.
. At the motions hearing the parties agreed that the code "ht” in the electro-fishing data in the record (FS 002491-99), refers to nonnative brook trout, not to bull trout as originally argued by Plaintiff in its brief.
. The approach is straightforward. If the lynx analysis relies solely on the Lynx Amendment, the case is remanded for further consultation. See Salix v. U.S. Forest Service,
. The Court will not consider Plaintiff's argument that timber harvest necessarily adversely affects lynx. (See Doc. 17 at 27-28.) There is no question that the Forest Service is capable of tailoring projects such that timber harvest does not adversely impact wildlife-to hold otherwise would be to undercut, in part, the agency’s statutory mandate.
. Not only are the proposed clearcut units scattered, but four of the seven units overlap with the powerline right-of-way in the southern third of the Project area. (FS 029356.)