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Gerald Jayne; Greater Yellowstone Coalition v. Mark Rey

January 29, 2011

GERALD JAYNE; GREATER YELLOWSTONE COALITION; THE LANDS COUNCIL; NATURAL RESOURCES DEFENSE COUNCIL; SIERRA CLUB; AND THE WILDERNESS MEMORANDUM DECISION SOCIETY, PLAINTIFFS,
v.
MARK REY, UNDER SECRETARY FOR NATIONAL RESOURCES AND ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE;
GAIL KIMBELL, CHIEF U.S. FOREST SERVICE; ROWAN GOULD, ACTING DIRECTOR, U.S. FISH AND WILDLIFE SERVICE; AND
DIRK KEMPTHORNE, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

INTRODUCTION

The Court has before it cross-motions for summary judgment. The Court heard oral argument and took the motions under advisement. For the reasons expressed below, the Court will grant the defendants' motion and deny the plaintiffs' motion.

FACTUAL BACKGROUND

In the 1970s, the Forest Service began to develop an inventory of roadless areas within National Forests. The Forest Service designated roadless areas of more than 5,000 acres as "inventoried roadless areas" (IRAs). Today, there are over 58.5 million acres contained in IRAs throughout the National Forest system. The lack of development within the IRAs makes them "bastions for public drinking water, plant and animal diversity, natural appearing landscapes, and other unique characteristics." FEIS at 386.

Concerned about encroaching development, the Forest Service promulgated in 2001 the Roadless Area Conservation Rule ("2001 Roadless Rule") to "prohibit road construction, reconstruction, and timber harvest in inventoried roadless areas because they have the greatest likelihood of altering and fragmenting landscapes, resulting in immediate, long-term loss of roadless area values and characteristics." 66 Fed. Reg. 3244 (Jan. 12, 2001).

The 2001 Roadless Rule was nation-wide in scope and did not contain variations tailored for each State. As a result, "some states and communities felt disenfranchised by the process." 73 Fed. Reg. at 61457 (October 16, 2008). In 2005, the Forest Service opted for a new approach, inviting States to submit petitions to adjust the management requirements for the IRAs within their borders. In conjunction with this new approach, the Department of Agriculture (USDA) created the Roadless Area Conservation National Advisory Committee (RACNAC), an advisory committee composed of 14 members to review State petitions and provide advice to the Department. See 70 Fed. Reg. 25,654 (May 13, 2005). The RACNAC included representatives from state and local governments, industry trade associations like the National Cattleman's Beef Association and National Mining Association, and conservation-oriented groups, including Trout Unlimited, Montana Wilderness Association, Nature Conservancy, and the Center for Biological Diversity.

In 2005, Idaho's Governor began a collaborative process to draft a state petition governing the 9.3 million acres of IRAs within the State. The State submitted the petition to the RACNAC in 2006, and then-Governor James Risch and his staff met with RACNAC in Washington D.C. to discuss the petition and clarify their intent.

The RACNAC then held four meetings to take comments on Idaho's petition. Many industry and conservation-oriented groups that were not directly represented on the RACNAC itself participated in these meetings. In addition to the RACNAC meetings, the USDA held 16 public meetings in Idaho, and obtained additional input in the written comment period. See 73 Fed.Reg. at 61458.

As a result of this process, Idaho's petition was modified and refined. Ultimately, the RACNAC -- in a unanimous vote -- recommended to the USDA that the petition be approved. The USDA did so on December 22, 2006. 72 Fed. Reg. 17,816, 17,817 (April 10, 2007).

The resulting Idaho Rule -- known as the Idaho Roadless Rule -- creates different categories of lands within Idaho's 9.3 million acres of IRAs based on the specific attributes of those lands, and then applies different management "themes" to each category. The first of those themes -- the Wild Land Recreation theme (WLR) -- covers about 1.5 million acres. 73 Fed. Reg. at 61463. All road construction in the WLR is banned except for one exception for roads required by "statute, treaty, reserved or outstanding rights, or other legal duty of the United States." 36 C.F.R. § 294.23(a). Similarly, all timber cutting on WLR lands is banned, except where incidental to some other management activity permitted by the rule (such as, for example, constructing a road described above).

The next theme is called "Primitive" and it covers 1.7 millions acres of Idaho IRAs. 73 Fed. Reg. at 61643. For Primitive areas, road construction is prohibited subject to a single exception. 36 C.F.R. § 294.23(a).

The third theme covers 50,000 acres designated under the Special Areas of Historic or Tribal Significance theme ("SAHTS"). SAHTS are treated similarly to Primitive areas. See 36 C.F.R. §§ 294.23-24.

For these first three categories -- WLR, Primitive, and SAHTS -- the Idaho Roadless Rule provides more protection than the 2001 Roadless Rule. See 73 Fed. Reg. at 61460. However, the next two categories allow more roads and logging than contemplated by the 2001 Roadless Rule.

The Back-country/Restoration (BCR) category covers 5.3 million acres. Protections are reduced here because temporary roads and logging are allowed to reduce the threat of wildfire. See 73 Fed. Reg. at 61458. The new Rule allows temporary road construction and logging within 442,000 acres of "community protection zones" (CPZs) within BCR lands. See 73 Fed. Reg. at 61460. Outside of CPZs, roads and logging are only allowed if there is a significant wildfire risk to a community or water supply, and protection "cannot be accomplished without a temporary road." See 36 C.F.R. § 294.23(b)(2) & (3).

To reduce the significance of allowing temporary roads and logging in the BCR, the Rule sets in place three restrictions. First, it requires that "the project generally retains large trees as appropriate for the forest type." 36 C.F.R. § 294.24(c)(1)(I). Second, timber cutting outside the CPZ is limited by a similar requirement, as well as the requirement that the action maintains or improves roadless characteristics over the long term. 36 C.F.R. § 294.24(c)(2). Third, the building of temporary roads outside of the CPZ to deal with "significant risks" of wildland fire is explicitly anticipated to be "infrequent," See 36 C.F.R. § 294.23(b)(3), and the Rule specifically provides that the "temporary roads" built under its terms must be decommissioned upon completion of the project. See 36 C.F.R. § 294.23(d).

The State of Idaho and the RACNAC were united in their intent that the BCR rules be read to provide at least the same protections as the 2001 Roadless Rule with flexibility to protect communities from the threat of wildfires. AR FS-590. The Forest Service agreed to treat the BCR lands in that manner: "Under the final rule, the vast majority of the BCR acres will be managed comparable to the 2001 Roadless Rule with a small amount of additional timber cutting and temporary road construction to allow fuel treatments to better protect vital community interests." 73 Fed.Reg. 61465 (October 16, 2008).

The final theme is designed as General Forest, Rangeland, Grassland (GFRG) and covers about 400,000 acres. These areas are mainly managed according to forest plan direction except that roads may not be constructed to access new mineral or energy leases other than to access specific areas of phosphate deposits. 73 Fed. Reg. at 61460. This will allow construction "in association with phosphate deposits" in the Caribou-Targhee National Forest -- including 5,770 acres of currently unleased roadless lands. 36 C.F.R. § 294.25(e)(1). In contrast, the 2001 Roadless Rule prohibited road construction in connection with new mineral leases issued after January 12, 2001. 36 C.F.R. § 294.12(b)(7).

Before putting the Idaho Roadless Rule in place, the Forest Service consulted with the Fish and Wildlife Service (FWS) under Section 7 of the Endangered Species Act (ESA) after finding that the new Rule "is likely to adversely affect eight listed species." See FWS Biological Opinion at 12. As a result of the consultation, the FWS issued a Biological Opinion finding that the new Rule is not likely to jeopardize the continued existence of any listed species. Id.

After reviewing the Biological Opinion, the Forest Service issued a Final Environmental Impact Statement (FEIS) in August of 2008. AR-FS at 844. On October 16, 2008, the Forest Service issued a Record of Decision (ROD) adopting the modified Idaho Roadless Rule.

The plaintiffs have brought this action challenging both the Biological Opinion issued by the FWS and the FEIS issued by the Forest Service. Plaintiffs argue that the FWS violated the Endangered Species Act (ESA) in preparing the Biological Opinion.

Plaintiffs also argue that the Forest Service violated NEPA in preparing the FEIS, incorrectly interpreted the Wyoming Wilderness Act in arriving at one conclusion, and improperly relied on the defective Biological Opinion prepared by the FWS. These violations, the plaintiffs assert, require the Court to enjoin the Idaho Roadless Rule and replace it with the 2001 Roadless Rule.

Standing and Ripeness

To have Article III standing to seek injunctive relief, a plaintiff must show that he is under threat of suffering "injury in fact" that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury. Summers v. Earth Island Institute, 129 S.Ct. 1142, 1149 (2009). The concrete harm requirement can be satisfied by an injury to "the recreational or even the mere esthetic interests of the plaintiff." Id. at 1149. Citing Summers, the Ninth Circuit held that a member of an environmental group must show that he "had repeatedly visited an area affected by a project, that he had concrete plans to do so again, and that his recreational or aesthetic interests would be harmed if the project went forward without his having the opportunity to appeal." Wilderness Society, Inc. v. Rey, 622 F.3d 1251, 1256 (9th Cir. 2010). Where the recreational use of a particular area has been extensive and in close proximity to the plaintiff, an affiant's expressed intention to continue using the land "is sufficiently concrete to underwrite an injury-in-fact." Id. "Nonetheless, a vague desire to return to the area 'without any description of concrete plans, or indeed any specification of when the some day will be' does not support a finding of actual or imminent injury." Id. (quoting Summers, 129 S.Ct. at 1151).

The plaintiffs' affidavits establish that their members use and enjoy numerous National Forest roadless areas in Idaho that were protected under the 2001 Roadless Rule but receive less protection under the Idaho Roadless Rule. For example, Craig Gehrke, the Regional Director of plaintiff Wilderness Society, states in his affidavit that "[m]any of the Idaho roadless areas that I have personally hiked and professionally defended are allocated to management themes under the [Idaho Roadless Rule] that do not provide the same level of protection as the 2001 Roadless Rule." See Gehrke Affidavit (Dkt. 67-3) at ΒΆ 5. Gehrke goes on to name specific roadless areas as examples and discusses in detail the ways the new rule will affect his recreational and esthetic enjoyment of those areas. He expresses more than a "vague desire to return to the area," Wilderness Society, 622 F.3d at 1256, by alleging that "[i]t is my plan to return to these roadless areas every spring and every fall for as long as I am physically able." See Gehrke ...


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