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Native Ecosystems Council & Alliance For the Wild Rockies v. United States Forest Service

September 9, 2011

NATIVE ECOSYSTEMS COUNCIL & ALLIANCE FOR THE WILD ROCKIES, PLAINTIFFS,
v.
UNITED STATES FOREST SERVICE, ACTING BY AND THROUGH ASHTON/ISLAND PARK DISTRICT RANGER ON THE CARIBOU-TARGHEE NATIONAL FOREST ELIZABETH DAVEY, HARV FORSGREN, REGIONAL FORESTER FOR REGION 4 OF THE UNITES STATES FOREST SERVICE, KEN SALAZAR, UNITED STATES SECRETARY OF THE INTERIOR, AND UNITED STATES FISH AND WILDLIFE SERVICE, ACTING BY AND THROUGH DIRECTOR DAN ASHE, DEFENDANTS.



The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

On May 11, 2011, Native Ecosystems Council and the Alliance for the Wild Rockies ("Plaintiffs") -- non-profit organizations dedicated to the conservation and preservation of natural resources and biodiversity in the Northern Rockies -- filed an action against the United States Forest Service, the United States Fish and Wildlife Service, Secretary of the Interior Ken Salazar, and various other federal employees associated with these agencies (collectively "Defendants").*fn1 (Dkt. 1.)

In their complaint, Plaintiffs challenge the Forest Service's approval of the remapping of habitat for the Canada Lynx within the Caribou-Targhee National Forest and the authorization of the Split Creek Pre-Commercial Thinning Project, which provides for the thinning of approximately 7,000 acres of lodgepole pine located within the Island Park Subsection of the Caribou-Targhee National Forest in areas previously designated as protected lynx habitat. Plaintiffs seek judicial review of the above two actions under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and allege violations of the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4331 et seq.

Before the Court is Plaintiffs' Motion for Preliminary Injunction and Temporary Restraining Order. (Dkt. 25.) Plaintiffs seek an order enjoining all activities authorized by the Split Creek Pre-Commercial Thinning Project, including the thinning of approximately 2,400 acres of lodgepole pine scheduled to commence on August 23, 2011. The Court has reviewed Plaintiffs' motion, the parties' memoranda and supplemental materials filed in support of the parties' positions, and the Court heard oral arguments on the motion on September 6, 2011. Because the Court finds Plaintiffs have failed to demonstrate a likelihood of irreparable harm, the motion for a preliminary injunction will be denied as explained more fully in this order.

FACTUAL AND PROCEDURAL BACKGROUND

A. Designation of the Canada Lynx as a Threatened Species and Mapping of Lynx Habitat The Fish and Wildlife Service listed the Canada Lynx as a threatened species under the ESA in March of 2000. Following the designation of the lynx as endangered under the ESA, an interagency lynx biology team developed the Canada Lynx Conservation and Assessment Strategy ("LCAS") as an interim strategy for protecting lynx on federal lands. The LCAS provided direction for mapping lynx habitat and recommended that each National Forest designate Lynx Analysis Units ("LAU's") for all areas with lynx habitat. Id. According to the LCAS, LAU's were "not intended to depict actual lynx home ranges, but are intended to provide analysis units of the appropriate scale with which to begin the analysis of potential direct and indirect effects of projects or activities on individual lynx, and to monitor habitat changes." Id. The LCAS also provided planning standards and guidelines for delineating LAU's.

The LCAS defined lynx habitat as "mesic coniferous forests that have cold, snowy winters and provide a pray base of snowshoe hare." Canada Lynx Conservation Assessment and Strategy, Executive Summary, available at http://www.fs.fed.us/r1/wildlife/carnivore/Lynx/lcas.pdf. The LCAS also noted that the snowshoe hare is the primary prey of the lynx, comprising up to 97 percent of the lynx's diet, and that the habitat of the lynx coincides with that of the snowshoe hare. Id.

Lynx habitat mapping and designation of LAU's within the Caribou-Targhee National Forest (the "Forest") was completed in 2001. The 2001 map depicts several LAU's within the Forest. The Forest Service and Fish and Wildlife Service entered into a Lynx Conservation Agreement in 2000. The agreement served as a framework for lynx conservation within mapped lynx habitat on national forests. The Lynx Conservation Agreement was revised in 2005 and again in 2006 to implement the standards and guidelines in the LCAS until formal management could be implemented. The 2005 revisions noted that conservation measures detailed in the Agreement would apply only to National Forest lands mapped as "occupied lynx habitat" and that the Forest Service and Fish and Wildlife Service would jointly refine the criteria for classifying lynx habitat as occupied.*fn2 "As new information became available (including information on habitat quality, snowshoe hare studies, and habitat mapping), it became necessary to refine the [original] LAU map," and in 2005, the Forest Service developed a revised LAU map for the Island Park and Centennial Mountain area.*fn3

The 2005 map identified lynx habitat and designated LAU's using the habitat descriptions from the LCAS. Linkage areas (defined as areas that provide connectivity between blocks of lynx habitat) were also identified. The 2006 revisions included the following definition of "occupied lynx habitat":

All mapped lynx habitat on an entire forest is considered "occupied" by lynx when:

- [t]here are at least 2 verified lynx observations or records since 1999 on the national forest unless they are verified to be transient individuals; or

- [t]here is evidence of lynx reproduction on the national forest.*fn4

Like the 2005 revisions, the revisions in 2006 also resulted in the creation of a map identifying lynx habitat, but there was no new delineation of LAU's on individual forests.

In 2007, the Forest Service adopted the Northern Rockies Lynx Management Direction (the "Lynx Management Direction"), which set forth goals, standards, and guidelines for all LAU's. The Lynx Management Direction also amended the Forest Plans for the Caribou-Targhee National Forest and incorporated lynx conservation guidelines into those plans. The Lynx Management Direction superceded the interim Conservation Agreement between the Forest Service and the Fish and Wildlife Service, including the 2005 and 2006 revisions.

The Lynx Management Direction provided a definition of lynx habitat and identified the vegetation characteristics that contribute to lynx habitat. It retained the definition of "occupied habitat" implemented by the 2006 revisions to the Conservation Agreement and included a map, based on the 2006 revisions, that displayed occupied and unoccupied lynx habitat located within the Northern Rockies Lynx Planning Area. The Split Creek Pre-Commercial Thinning Project is located within an area designated "occupied" by the Lynx Management Direction. In lynx habitat designated "occupied," the Lynx Management Direction mandates clear protection of lynx and snowshoe hare habitat. Pre-commercial thinning in snowshoe hare habitat was also identified as a threat to lynx productivity, and the Lynx Management Direction adopted a series of standards restricting pre-commercial thinning activities in snowshoe hare habitat. The map included with the Lynx Management Direction did not, however, delineate LAU's and expressly acknowledged that it was not an official LAU map for individual forests.

B. Events Leading to Approval of the Split Creek Pre-Commercial Thinning Project The Split Creek Pre-Commercial Thinning Project (the "Project") originally was approved in December of 2007 and relied on the map generated as a result of the 2005 revisions to the interim Conservation Agreement between the Forest Service and the Fish and Wildlife Service. At that time, the 2005 map had not been reviewed or approved by the regional Forester. After receiving objections to the use of a map that had not been exposed to public comment, ...


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