THE WILDERNESS SOCIETY and PRAIRIE FALCON AUDUBON, INC., Plaintiffs,
THE UNITED STATES FOREST SERVICE, et al, Defendants, and MAGIC VALLEY TRAIL MACHINE ASSOCIATION, an Idaho non-profit Corporation; IDAHO RECREATION COUNCIL, and Idaho unincorporated non-profit association; and BLUERIBBON COALITION, INC., an Idaho non-profit corporation, Intervenor-Applicants.
MEMORANDUM DECISION AND ORDER
EDWARD J. LODGE, District Judge.
On February 21, 2012 this Court entered an Order granting in part and denying in part each of the Cross-Motions for Summary Judgment filed by the parties in this case. (Dkt. 88.) In that Order the Court directed the Defendants to determine whether a supplemental Environmental Assessment will be sufficient to satisfy NEPA's requirements or if an Environmental Impact Statement is necessary and ordered Defendants to file a notice with the Court as to how they intend to proceed on or before May 1, 2012. (Dkt. 88.) Such Notices were filed as well as responsive briefing. (Dkt. 89, 90.) On August 8, 2012, the Court held a hearing on the matter taking the outstanding issues under advisement; in particular the Plaintiffs' claims as to the Clean Water Act and compliance with the requirements of certain Executive Orders. (Dkt. 95.) The Court finds as follows.
FACTUAL AND PROCEDURAL BACKGROUND
On August 29, 2008, Plaintiffs, The Wilderness Society and Prairie Falcon Audubon, Inc., filed the Complaint in this matter challenging the United States Forest Service's ("Forest Service") actions and decisions made in relation to its February 22, 2008 Decision Notice ("DN"), Finding of No Significant Impact ("FONSI"), and Environmental Assessment ("EA"). (Dkt. 1.) These actions and decisions resulted in the project action at issue here, the Sawtooth National Forest Travel Plan Route Designation Revision ("Travel Plan Revision"), which designated 1, 196 miles of roads and trails for motorized recreation use on the Minidoka Ranger District of the Sawtooth National Forest in Idaho. Plaintiffs claim the Defendants' decisions and actions violate the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq.; the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.; the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq.; National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq.; Executive Order 11644, as amended by Executive Order 11989; and the implementing regulations of these statutes and executive orders. (Dkt. 1.) Defendants counter that their decisions and actions were in accord and fully complied with the applicable standards and requirements of these statutes. (Dkt. 10.) On March 6, 2009, both parties filed Motions for Summary Judgment. (Dkt. 25, 29.)
Prior to the filing of those Motions, however, on February 20, 2009, the Court denied a Motion to Intervene filed by Magic Valley Trail Machine Association, Idaho Recreation Council, and BlueRibbon Coalition. (Dkt. 23.) The Court also denied a later Motion for Reconsideration of that Order. (Dkt. 49.) A Notice of Appeal was filed as to the decisions regarding intervention causing a lengthy delay in ruling on the pending Motions for Summary Judgment in this case. (Dkt. 27.) That appeal was decided on January 14, 2011. (Dkt. 66.) The Ninth Circuit Mandate issued on March 8, 2011 after which the Court considered and granted an Amended Motion to Intervene. (Dkt. 68, 74, 75.) The Court then, on June 6, 2011, granted the parties' Motion to Renew the Motions for Summary Judgment. (Dkt. 77.) Each side was allowed time to supplement their previous summary judgment briefing after which these Motions for Summary Judgment finally became ripe. (Dkt. 77, 79-87.)
After reviewing all of those materials, the Court issued its Order granting in part and denying in part the respective cross-motions for summary judgment. (Dkt. 88.) Specifically, the Court concluded that the Defendants had satisfied their statutory duties except with regard to the site-specific impacts of 94 miles of non-system routes, the unknown cumulative impacts of the 650 miles of non-system routes, and the unique aspects of the Minidoka Ranger District as to Yellowstone cutthroat trout. (Dkt. 88.) The Court directed the Defendants to reexamine their conclusions regarding the project's significance and impact and determine whether it could resolve the shortcomings in the EA by supplementation or if a full EIS is necessary. (Dkt. 88 at 25.) The Court reserved its ruling on the claims alleging violations of the CWA and the Executive Orders.
In May of 2012, the Defendants submitted their Notice of Intent on How to Proceed to which the Plaintiffs responded. (Dkt. 89, 90.) Defendants' Notice proposed that they would complete a supplemental EA no later than March 2014. (Dkt. 89.) Plaintiffs question the adequacy of the Defendants' proposal and requests interim relief pending completion of the NEPA process to ensure the forest resources are protected. (Dkt. 90.)
The Court held a hearing and took the outstanding issues under advisement in anticipation of a decision in another Ninth Circuit case entitled Klamath-Siskiyou Wildlands Center v. Grantham . (Dkt. 95.) The parties advised the Court once that decision was issued and have also provided other supplemental authority they believe to be applicable in this case. (Dkt. 96, 97, 98, 100, 101.) The Court has reviewed these materials and finds as follows.
1. Notice of Intent on How to Proceed
At the hearing, the parties disagreed regarding the timing of the proposed supplemental EA, which Defendant proposed would be issued no later than March 2014. The Court has considered this proposal at length and finds it to be reasonable. Given the size of the area and the seasonal nature of the additional research that needed to be completed, the Court finds the time-frame for issuance of the supplemental EA as being no later than March 2014 is appropriate.
Additionally, following the August, 2012 hearing, the parties notified the Court that they agreed that the outstanding CWA and Executive Order claims were ripe for the Court's decision. The Court has gone back and reviewed the materials previously submitted regarding these claims as well as the arguments made at the hearing and the supplemental materials provided by the parties. Having done so, the Court finds as follows.
2. Violation of CWA by Failing to Analyze and Consider Water Quality Standards
In the prior order on the Cross-Motions for Summary Judgement, the Court reserved its ruling on the CWA issue in light of its decision on the NEPA and NFMA claims until after the Forest Service either supplemented the EA or issued an EIS. (Dkt. 88 at 35.) At the last hearing, the parties agreed that the CWA claim is ripe for the Court's consideration. (Dkt. 95.)
Following the hearing, the Intervenor-Defendants filed a Notice of Supplemental Authority citing to a recent decision in Klamath-Siskiyou Wildlands Center v. Grantham, 899 F.Supp.2d 948 (E.D. Cal. 2012). (Dkt. 96.) The Intervenor-Defendants argue that case rejected similar CWA claims as those raised here. In response, Plaintiffs counter that the Klamath-Siskiyou case is distinct from the claim raised here. (Dkt. 97.)
The court in Klamath-Siskiyou considered a Final Environmental Impact Statement issued in regard to the Klamath National Forest Motorized Travel Management Environmental Impact Statement. There, the court held that the Forest Service complied with the provisions of the CWA concerning nonpoint source pollution and that the state antidegradation requirements do not apply to federal agencies. Id. at 969-70. (noting the distinction between the CWA's regulations for point source discharges and nonpoint source pollution). In Klamath-Siskiyou the court also concluded that the plaintiffs had not identified any state water quality statutes or regulations that the federal agency had failed to ...