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

June 6, 2012

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, UNITED STATES SECRETARY OF THE INTERIOR KEN SALAZAR, & UNITED STATES FISH & WILDLIFE SERVICE, ACTING BY AND THROUGH ACTING DIRECTOR ROWAN GOULD, DEFENDANTS.



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

MEMORANDUM DECISION AND ORDER

INTRODUCTION

In 2005, the United States Forest Service adopted a revised map delineating analysis units for the Canada lynx within the Caribou-Targhee National Forest. The Canada lynx is listed as a threatened species under the Endangered Species Act and the land within the boundaries of Lynx Analysis Units ("LAUs") is subject to various restrictions, including a prohibition on precommercial thinning of trees. The 2005 map eliminated eight LAUs located within the Caribou-Targhee National Forest and removed approximately 400,000 acres of land previously subject to the restrictions applicable to LAUs.

In December of 2009, the Forest Supervisor for the Caribou-Targhee National Forest authorized the Split Creek Precommercial Thinning Project (the "Split Creek Project" or "Project"). The Project authorized the precommercial thinning of approximately 7,000 acres of lodgepole pine located within the Island Park and Madison-Pitchstone Plateaus Subsections of the Caribou-Targhee National Forest. The Forest Service prepared an Environmental Assessment for the Project under the National Environmental Policy Act ("NEPA") and a Biological Assessment of the potential affects of the Project on the Canada lynx and its habitat under the Endangered Species Act ("ESA").

In its review under NEPA, the Forest Service concluded that the Project "will not have a significant effect on the quality of the human environment" and that the preparation of a more detailed Environmental Impact Statement was not necessary. (Administrative Record 12225.)*fn1 In its review under the ESA, the Forest Service concluded that the Project "may affect, but is not likely to adversely affect" the Canada lynx or its habitat. (AR 5691.) Both analyses rely heavily on the 2005 map and the fact that the Project area is not within an LAU. Prior to its use as a justification for the authorization of the Split Creek Project, the 2005 map had not been analyzed under NEPA.

Based upon these findings, the Project commenced on July 8, 2010, and the Forest Service thinned approximately 1,350 acres of lodgepole pine. Year two of the Project commenced in August of 2011, and it was anticipated that approximately 2,400 acres of lodgepole pine would be thinned. The Project is scheduled to continue each season until the full 7,000 acres are thinned.

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 ("FWS"), Secretary of the Interior Ken Salazar, and various other federal employees associated with these agencies (collectively "Defendants").*fn2 (Dkt. 1.)

Plaintiffs challenge two actions taken by Defendants. First, Plaintiffs challenge the Forest Service's authorization of the Split Creek Project. Plaintiffs contend that the Project is detrimental to the habitat of the Canada lynx, and by extension to the lynx itself. Second, Plaintiffs challenge Defendants' adoption of the 2005 LAU map, arguing that the map should have been subjected to NEPA review and that the failure to do so undermines the agency decisions related to authorization of the Project, which rely on the map. Plaintiffs argue that the approval of the 2005 map and the authorization of the Project violated NEPA, 42 U.S.C. § 4331 et seq., the ESA, 16 U.S.C. § 1531 et seq., and the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq.

Before the Court are the parties' cross-motions for summary judgment. (Pl.s' Mot. for Summ. J., Dkt. 45; Def.s' Cross-Mot. for Summ. J., Dkt. 46.) A hearing on the parties' motions was held on February 28, 2012. Having fully considered the parties' briefing and arguments, and having reviewed the voluminous administrative record and the applicable legal authorities, the Court finds that the Forest Service's failure to prepare an Environmental Impact Statement for a decision that ultimately opened approximately 400,000 acres of previously protected land to precommercial thinning violated NEPA. Moreover, like a house of cards built on an unsound foundation, because the 2005 map was not analyzed under NEPA, the agency's analysis under the ESA -- which is based upon the validity of the 2005 map -- cannot withstand judicial review. Based on the above, and as more fully explained below, Plaintiffs' motion for summary judgment will be granted in part, the Split Creek Project will be enjoined, and the case will be remanded to the agencies for further proceedings consistent with this Memorandum Decision and Order.

FACTUAL AND PROCEDURAL BACKGROUND

1. Designation of the Canada Lynx as a Threatened Species and Mapping of Lynx Habitat On March 24, 2000, the FWS added the Canada lynx (Lynx canadensis) to the list

of threatened species under the Endangered Species Act. 65 Fed. Reg. 16052-1, 2000 WL 299328. Following nearly a decade of analysis, the agency determined that the lynx population of the continental United States was threatened by "the lack of guidance for conservation of lynx and snowshoe hare habitat in the National Forest Land and Resource Plans." (AR 1524.) The FWS concluded that "it is imperative that lynx habitat and habitat for lynx prey [primarily snowshoe hare] be maintained and conserved on Federal lands." 65 Fed. Reg. 16051-01.

In 2000, an interagency lynx biology team, which consisted of biologists from the Forest Service, the FWS, the Bureau of Land Management, and the National Park Service, developed the Canada Lynx Conservation and Assessment and Strategy ("LCAS") as an interim and guiding conservation strategy for lynx on federal lands. (AR 5307-5309.) The LCAS required the Forest Service and the FWS to delineate LAUs "upon which direct, indirect, and cumulative effects" from site-specific projects could be analyzed. (AR 4695-96.) "An LAU is an area of at least the size used by an individual lynx, from about 25 to 50 square miles[,]" (AR 1591), and must contain "at least 10 square miles of primary [lynx habitat to support reproduction and survival]." (AR 4672-73.) According to the LCAS, LAUs 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."

In 2001, the Forest Service and the FWS delineated LAUs for the Island Park and Centennial Mountain areas of the Caribou-Targhee National Forest ("C-TNF").*fn3 (AR 4820.) The parties refer to this as the 2001 map. The 2001 map depicts several LAUs within the C-TNF, including what would become the Split Creek Precommercial Thinning Project area. Of the total 1,134,779 acres within the boundaries of an LAU in the forest, 645,049 acres were considered primary suitable habitat, 126,795 were secondary suitable habitat, 98,554 were primary unsuitable habitat and 8,565 were considered secondary unsuitable habitat. (AR 4821.) The 2001 map also identifies LAUs within the project area containing "primary" lynx habitat. (Id.)

During this same time period, the Forest Service and the FWS entered into a Lynx Conservation Agreement in the year 2000. The agreement served as a framework for lynx conservation within mapped lynx habitat on national forests and was revised in 2005 and again in 2006 to implement the standards and guidelines in the LCAS until formal management could be implemented.

In 2005, as contemplated by the LCAS, the agencies revised the LAU designations in the Island Park and Centennial Mountain areas. (AR 3098, 5675.) According to the FWS, "[a]s 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. (AR 5697.) In the revision process, the agencies used a habitat model that predicted the probability of moist subalpine fir habitat in the Island Park and Centennial Mountain areas. (AR 5623-28.) The habitat model used a topographic methodology (evaluating elevation, slope, soil, etc.) that allowed the agencies to more accurately separate the moist subalpine fir habitat (which the agencies previously found to be primary lynx habitat) from the dry subalpine fir habitat types (which the agencies previously found were not associated with primary lynx habitat). (AR 5623-27.)

When this habitat model was applied to the Island Park and Centennial Mountain areas, the agencies found that the occurrence of moist subalpine fir habitat in the 2001 LAU map had been significantly overestimated. (AR 5623) ("estimated occurrence of [moist] subalpine fir habitat type [in the Island Park area] was considerably (>30%) less than previously mapped."). Based on the results of the habitat model, the agencies revised the locations of moist subalpine fir habitat types in the areas and determined that many of the 2001 LAUs, especially in the Island Park area, contained less than the required 10 square miles of moist subalpine fir habitat. Ultimately, the 2001 map was revised, and the revised map -- the 2005 map -- proposed to drop eight LAUs within the Island Park Subsection and Madison-Pitchstone Plateaus Subsection of the CTNF. (AR 4821.) The 2005 map removed 390,900 acres from the 2001 map. (AR 5608.)

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 LAUs. (AR 1520.) The Lynx Management Direction superceded the interim Conservation Agreement between the Forest Service and the FWS, including the 2005 and 2006 revisions. It also amended the Forest Plans for the Caribou-Targhee National Forest and incorporated lynx conservation guidelines into those plans. (AR 1524.)

The Lynx Management Direction sets forth several objectives, standards, and guidelines applicable "to all management projects in lynx habitat in lynx analysis units (LAUs) in occupied habitat and in linkage areas."*fn4 (AR 1576.) Vegetation Standard S1 prohibits vegetation treatment projects "[i]f more than 30 percent of the lynx habitat in an LAU is currently in a stand initiation structural stage that does not yet provide winter snowshoe hare habitat." (AR 1577.) Vegetation Standard S2 prohibits timber projects on "more than 15 percent of lynx habitat on [Forest Service] lands within an LAU in a ten-year period." (Id.) Vegetation Standard S5 specifically addresses pre-commercial thinning projects and prohibits such activity in areas within LAUs except in limited enumerated circumstances.*fn5 And Vegetation Standard S6 prohibits vegetation management projects that reduce snowshoe hare habitat in multi-story mature or late successional forests except in limited enumerated circumstances. (AR 1579.)

The Forest Service has not assessed whether the Split Creek Precommercial Thinning Project complies with the above standards because, based on the 2005 map, there are no LAUs within the Project area and the standards apply to lynx and snowshoe hare habitat only within LAUs.

2. Events Leading to Approval of the Split Creek Project

The Split Creek Project was approved originally by the Forest Service in December of 2007 and relied on the 2005 map, which had not yet been approved by the Regional Forester. (AR 3028.) After receiving objections to the use of a map that had not been exposed to public comment, the Forest Service withdrew the project in August of 2008 to provide notice and comment on both the 2005 map and the Project. The Project was "withdrawn on July 28, 2008 to provide an opportunity for public notice and comment on both the pre-commercial thinning proposal and on the Caribou-Targhee National Forest (C-TNF) updated Lynx Analysis Unit mapping for the Canada Lynx." (AR 11552.)

In February of 2009, Forest Service staff proposed the approval and adoption of the 2005 map to the Regional Forester. (AR 5604.) The 2005 LAU map made significant changes to the 2001 LAU map, including the removal of several LAUs. These changes were made pursuant to "Standard LAU S1" set forth in the Lynx Management Direction, which provides that "[c]hanges in LAU boundaries shall be based on site-specific habitat information and reviewed by the Forest Service Regional Office." (AR 1576.) Neither an Environmental Assessment nor an Environmental Impact Statement was completed for the 2005 map.

According to the Forest Service, the changes to the 2001 LAU map were made based on the following information: LAU mapping direction contained in the LCAS; the history of lynx occurrence information contained in the Ecology and Conservation of Lynx in the United States; recent lynx occurrence information gathered from the national lynx detection surveys (commonly referred to as lynx hair-snare grids), reported observations, and one radio-collared lynx; two snowshoe hare studies completed on the Caribou-Targhee National Forest; information and recommendations from the July 2003 Lynx Interagency Coordination Meeting held in Island Park Idaho; new vegetation analysis done on BLM and National Forest lands in the Centennial Mountains and Plateau area; and a second evaluation of vegetation in the Caribou Range Overthrust Mountain Ecological Subsection. (AR 83-84.)

In response to the Caribou-Targhee National Forest's proposed adoption of the 2005 LAU map, the Regional Forester made the following comments:

As per your request, the Region 4 Wildlife staff reviewed your 2005 revision of the Caribou-Targhee National Forest Lynx Analysis Unit (LAU) Map. The LAU map and the process used to develop it are consistent with direction contained in the Northern Rockies Lynx Management Direction (NRLMD) and concepts outlined in the Lynx Conservation Assessment and Strategy. It is our expectation that the Forest will use this new map to implement requirements of the NRLMD and will serve as the reference for mapped Lynx habitat on the Forest. We recognize that the 2005 LAU map represents more recent analysis of lynx habitat than that contained in Figure 1-1 of the NRLMD.

Also, we recognize that Figure 1-1 in the NRLMD was never intended to accurately depict mapped lynx habitat at theforest scale. (AR 5684-85.) In April of 2009, the proposal was approved by Regional Forester Harv Forsgren. (AR 5603.) In December of 2009, the CTNF Forest Supervisor authorized the Split Creek Project. (AR 12218.)

3. The Split Creek Project

The Project authorized the precommercial thinning of approximately 7,000 acres of lodgepole pine (with a minor amount of aspen, Douglas-fir and subalpine fir) located within the Island Park and Madison-Pitchstone Plateaus Subsections of the Caribou-Targhee National Forest. (AR 5663.) "Approximately 2,000 - 4,000 acres are proposed to be thinned each year starting in 2010, depending on funding." (Id.) "The areas identified to be thinned are past harvest units primarily composed of stands of lodgepole pine with 500 - 13,000 trees per acre [and] [t]he lodgepole would be thinned to a residual density of approximately 360 trees per acre." (Id.)

The FWS summarized the purpose of the Project as follows:

The purpose of the Split Creek Project is to improve overall stand health. The high tree density in the Split Creek Project area results in less vigorous growth, which can eventually lead to a stagnant forest. The high level of competition between the trees in the stand causes the trees to shed their lower branches (self pruning), the tree crowns become very thin, and the tree diameters remain small. Thinning of the stands would result in retention of lower live limbs, which provides hiding cover for many wildlife species. Thinning would also result in less competition, which results in better crown development and faster and bigger diameter growth, providing more suitable habitat for cavity nesting birds, and larger limbs for forest raptors to build nests. Additionally, large tree crowns provide more cone production for natural regeneration and food for species that utilize conifer seed. (AR 5696-97.)

Logistically, contract crews using chainsaws have been thinning the trees in the Project area. There is to be no new road construction or reconstruction. Trees that are felled are to be left on site, and, therefore, there are no ground disturbing activities due to machine piling or skidding. (AR 5696.) Year one of the Project commenced on July 8, 2010, and the Forest Service thinned approximately 1,350 acres of lodgepole pine. Year two of the Project commenced in August of 2011, and it was anticipated that approximately 2,400 acres of lodgepole pine would be thinned.

4. Biological Assessment under the ESA

In evaluating whether to approve the Project, pursuant to Section 7 of the ESA, the Forest Service determined that the Project "may affect" the lynx, and therefore consulted with the FWS before authorizing the Project. As part of the consultation, the Forest Service prepared a Biological Assessment for the lynx. (AR 5660.) The Biological Assessment was issued on July 22, 2009, and addressed the potential effects of the Project on the lynx and its habitat, including snowshoe hare habitat. In evaluating the potential adverse effects of the Project on the lynx, the Forest Service noted the following observations in the Biological Assessment: for the time period between 1874 through 2005, only one radio-collared male lynx crossed the Project area during the summers of 2000 and 2001 (AR 5669); no lynx tracks have been documented on any established winter snow tracking routes from 2005 to the present (id.); there are no resident reproducing lynx in the C-TNF (AR 5671); since 2005, winter snow tracking routes, including one in the Project area have demonstrated no verified or possible lynx tracks (AR 5669); and during the winter of 2009, the Forest Service positioned 40 winter snow tracking routes within the Project area and did not observe any lynx or lynx tracks on any route. (AR 5671.) Based on these observations, the Forest Service acknowledged the possibility of an individual lynx moving through the Project area, but found that, in the event of this unlikely scenario, the lynx would be displaced only (required to move around the area) and no lynx mortality would result. (Id.)

The Forest Service also considered the potential effects the Project would have on lynx habitat, as distinct from the potential effects on the lynx itself. The Biological Assessment notes that the Project area is not located within habitat designated "critical" by the FWS under the ESA. (AR 5663.) The Biological Assessment also emphasizes that the Project area is not located within any designated LAUs. (AR 5688.) The physical characteristics of the Project area also were assessed and found not to be the type associated with lynx habitat. (AR 5680) (noting that the "lodgepole pine forests in this area grow on coarse volcanic soils that are well drained . . . , do not develop understories of subalpine fir . . . [and] Lynx do not appear to be associated with dry forest habitat types.").

Similarly, because the snowshoe hare composes the main diet of the lynx, and the habitat of the hare has been directly tied to the habitat of the lynx, the Forest Service also examined the potential effects of the Project on snowshoe hare habitat. (AR 5689.) According to the Forest Service, between January 2009 and March 2009, a total of 40 transects were established within the proposed thinning units for the purpose of documenting the presence of the lynx. (Id.) No lynx were documented, but the transects did produce information on the presence of other wildlife species, including the snowshoe hare. (Id.) These winter tracking routes demonstrated what the Forest Service characterizes as a relatively low presence of snowshoe hare in the project area; snowshoe hare were found on 9 of the 40 of the transects. (Id.) Out of the nine transects that noted the presence of the hare, four indicated high densities and five indicated low densities of tracks. (AR 5689-90.)

It also was noted that the data obtained from the snow tracking analysis was consistent with previous snowshoe hare research done in the C-TNF. (AR 5690.) More specifically, previous research "found that hares occur in reasonably high concentrations when stand conditions are exactly right[,]" but based upon the characteristics of the Project area, the Forest Service concluded that "while some stands in Island Park can produce hares at densities similar to those observed in the Seeley Lake area (an area known to support lynx [in Montana]), these stands will remain scattered, and will only constitute a small proportion of the landscape." (Id.)

Based on the above findings, the Forest Service determined that the Project was "not likely to adversely affect" the lynx or its habitat (AR 5691), and requested a concurrence from the FWS. (AR 5659.) It is clear from the Biological Assessment that the Forest Service relied heavily on the 2005 map -- the very first reason for the Forest Service's conclusion is that "The Split Creek precommercial thinning project area is not within a LAU; therefore, no lynx habitat will be affected by the project." (Id.) The document further states that "[m]anagement direction prohibiting precommercial thinning in a LAU is not applicable to this project because the project area is not within a LAU." (Id.)

On August 11, 2009, after reviewing the Forest Service's Biological Assessment, the FWS concurred with the finding that the Project was "not likely to adversely affect" the Canada lynx. (AR 5696.) The FWS listed several reasons for its concurrence, including: lynx occurrences in the Project area were historically rare and "extremely unlikely" (AR 5697-98); no documented reproducing lynx occurred within the Project area (AR 5697); the Project area is not located within any designated critical habitat or within any LAUs; while the Project does occur within linkage habitat, "all management direction applicable to linkage areas will be met" (id.); and, winter snow tracking transects in the Project area "revealed that snowshoe hares, which make up the majority of a lynx's diet, were not present on 31 of the 40 transects surveyed." (AR 5698.) The FWS concluded:

Based on the information provided in the Assessment, the cooperation and coordination between the Service and Forest while developing the Canada lynx LAU maps for the Forest, the two streamlining meeting (in March 2007 and March 2009) to discuss the Split Creek Project, and the meeting on July 6, 2009 also to discuss the Split Creek Project, the Service concurs with the Forest's determination that the proposed Split Creek Project may affect, but is not likely to adversely affect Canada lynx. (AR 5698.) The concurrence also states that: "[t]he 2005 LAU map is the best scientific information available for Canada lynx habitat in the Split Creek Project area . . . . As such, per the 2005 LAU map, the Split Creek Project area does not occur within an LAU; therefore, no lynx habitat will be affected by the Split Creek Porject. Any management direction precluding the use of precommercial thinning in a LAU is therefore not applicable, and ...


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