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Alliance for Wild Rockies v. Brazell

United States District Court, Ninth Circuit

November 27, 2013

ALLIANCE FOR THE WILD ROCKIES and FRIENDS OF THE CLEARWATER, Plaintiffs,
v.
RICK BRAZELL, Supervisor of the Nez Perce National Forest; FAYE KRUEGER, Regional Forester of Region One of the U.S. Forest Service; UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; and UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the U.S. Department of Interior, Defendants.

MEMORANDUM DECISION AND ORDER INTRODUCTION

MIKEL H. WILLIAMS, Magistrate Judge.

Plaintiffs Alliance for the Wild Rockies ("AWR") and Friends of the Clearwater ("FOC") challenge the 2012 Record of Decision of the U.S. Forest Service ("Forest Service") to approve the Little Slate Project ("Project") which authorizes improvement of conditions in the Little Slate Creek watershed through various means described below. (FS221, 229.) Now pending before the Court are Plaintiffs' Motion for Summary Judgment (Dkt. 23) and Defendants' Cross Motion for Summary Judgment (Dkt. 24).[1] The Court held oral argument on the Motions on September 4, 2013.

Having carefully reviewed the record and having considered the briefing and oral arguments of the parties, the Court enters the following Order denying Plaintiffs' Motion and granting Defendants' Motion for the reasons set forth below.

BACKGROUND

1. Procedural History

On July 28, 2011, the Forest Service published legal notice of the Little Slate Draft Environmental Impact Statement ("DEIS"). (FS1-202.) On March 2, 2012, the Forest Service published legal notice of the Little Slate Final Environmental Impact Statement ("FEIS") (FS215-544) and Record of Decision ("ROD") (FS573-721). Plaintiffs had timely provided public comments on the DEIS and filed appeals of the ROD. On May 25, 2012, Deputy Regional Forester Cottrell signed the appeal denial and authorized implementation of the Project. (FS22789-22802.) On June 11, 2012, Plaintiffs sent to Defendants a 60-day notice of intent to sue (FS23902-08) under the Endangered Species Act ("ESA") to which Forest Supervisor Brazell responded on July 26, 2012 concluding that the Project is in full compliance with the ESA. (FS23909-922.) Plaintiffs filed a supplemental notice of intent to sue under the ESA on August 1, 2012, providing additional information obtained in response to a Freedom of Information Act request ("FOIA documents") regarding the alleged Canada lynx violations discussed in the initial 60-day notice. (FS23946-971.) On August 30, 2012, Forest Supervisor Brazell responded to the supplemental 60-day notice again concluding that the Project is in full compliance with the ESA.[2]

Plaintiffs now bring this action for judicial review under the Administrative Procedure Act and the citizen suit provision of the Endangered Species Act claiming that the ROD approving the Little Slate Project is arbitrary and capricious, an abuse of discretion, and/or otherwise not in accordance with law. They claim the approval violates the National Environmental Policy Act, ("NEPA"), 42 U.S.C. § 4331, et seq., the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600, et seq., the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. Compl. ¶ 3.

Plaintiffs claim that the Forest Service failed to comply with: (1) NEPA's mandate to consider and disclose environmental impacts, (2) NFMA's mandate to protect biodiversity, and (3) the ESA's mandate to participate in consultation, mitigate harm, and prevent irreparable injury to the environment. Compl. ¶ 4. Seeking declaratory and injunctive relief, Plaintiffs request that the Court enjoin the Forest Service from implementing the Project until Defendants fully comply with the relevant statutory directives and further request attorney fees and expert witness fees. Compl. ¶¶ 4-6.

Plaintiffs summarize the impetus behind the filing of this action as "the Forest Service's apparent lack of knowledge concerning the current state of the species and habitats that will be impacted by Project activities and the Forest Service's failure to honestly disclose these limitations to the public." Pls.' Mem. at 1-2, Dkt. 23-1.

2. Factual Summary

The Nez Perce National Forest (the "Forest") is located in Idaho County in the Idaho panhandle and contains over 2.2 million acres, 926, 188 acres of which are permanently protected as wilderness. (FS2653; 2595.) The Forest contains the Gospel-Hump Wilderness, as well as parts of the Hells Canyon, Frank Church-River of No Return, and Selway-Bitterroot Wildernesses. (FS2653.) Approximately 150 miles of the Middle Fork of the Clearwater, Salmon, Selway, and Rapid Rivers - all of which are classified as wild and scenic rivers - flow through or adjacent to the Forest. (FS2653.) Over 80 percent of Idaho County is federal land, and the two major uses in the Forest are timber supply and recreation. (FS2653.)

The Forest also contains a large and diverse array of wildlife, some of which rely on old-growth habitat. (FS2657.) Under the Forest Plan, the Forest Service maintains at least 10 percent of the Forest's timbered acres as old-growth and has a prescribed burning schedule to actively manage wildlife habitat. (FS2658.) The Project area is popular for various recreational activities including hunting, fishing, camping, motorized trail use, and sight-seeing. (FS221.)

The stated purpose of the Project is to improve conditions in the Little Slate Creek watershed through aquatic habitat restoration, timber harvest, fuel treatments, and changes to the roads and trails in the area.[3] (FS221; 229.) Under the Project, the Forest Service plans to conduct timber harvest and fuel reduction treatment on up to 2, 598 of the 2.2 million acres of the Forest to decrease the risk of a disastrous fire in the future. Past mining, timber activities, and disease have caused an unnatural buildup of trees and vegetation susceptible to fire which has been aggravated by the absence of any wildfire in past years. (FS221; 579). The specific plans are described in the ROD.[4]

STANDARDS OF REVIEW

1. Standard of Review under the APA

Challenges to agency actions are reviewed under the deferential standard of the Administrative Procedure Act ("APA"). Tuscon Herpetological Soc. v. Salazar, 566 F.3d 870, 875 (9th Cir. 2009). This narrow APA standard dictates that a reviewing court may set aside an agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. (citing 5 U.S.C. § 706(2)(A)). See also Siskiyou Regional Educ. Project v. U.S. Forest Service, 565 F.3d 545 (9th Cir. 2009) (NFMA); North Idaho Community Action Network v. U.S. Dept. of Transportation, 545 F.3d 1147 (9th Cir. 2008) (NEPA); Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc), overruled on other grounds by Winter v. Natural Res. Def. Council (NEPA and NFMA). The court "will reverse a decision as arbitrary or capricious 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.'" McNair, 537 F.3d at 987 (citation omitted). Although the standard of review is narrow, the Court must engage in a "substantial inquiry" and "probing, in-depth review, " and "the agency must present a rational connection between the facts found and the conclusions made." Siskiyou, 565 F.3d at 554 (internal quotations and citations omitted).

In conducting its review, the court must not assume the role of a scientist and need not agree with the agency's decision. McNair, 537 F.3d at 988. Rather, agencies have the discretion to rely on its own experts' reasonable opinions to resolve a conflict between or among specialists. Id. at 1000; Marsh v. Oregon Nat. Resources Council, 490 U.S. 360, 378 (1989).

Except in limited circumstances, the Court's review is limited to review of the administrative record underlying the challenged decision. Thompson v. Dept. of Labor, 885 F.2d 551, 555 (9th Cir. 1989). The administrative record "consists of all documents and materials directly or indirectly considered by the agency decision-makers and includes evidence contrary to the agency's position.'" Id. (quoting Exxon Corp. v. Dept. of Energy, 91 F.R.D. 26, 32 (N.D.Tex. 1981)) (emphasis in original). Judicial review should be focused on the record in existence at the time of the agency's decision. Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005); Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000) (citation omitted); Southwest Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996).

2. Summary Judgment Standard

Motions for summary judgment are governed by Federal Rule of Civil Procedure Rule 56 which provides, in pertinent part, that judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

Because review of agency actions is limited to the administrative record without triable facts, summary judgment may be granted to either party based on that review. Pit River Tribe v. U.S. Forest Service, 469 F.3d 768, 778 (9th Cir. 2006).

SUMMARY OF RELEVANT STATUTORY PROVISIONS

1. National Forest Management Act

For each unit in the National Forest System, NFMA requires the Forest Service to develop a comprehensive management plan ("Forest Plan") with which any subsequent "plans, permits, contracts, and other instruments for the use and occupancy" must be consistent. Earth Island Institute v. U.S. Forest Service, 351 F.3d 1291, 1300 (9th Cir. 2003) (citing 16 U.S.C. §§ 1604(a) and (i)). "The NFMA and its implementing regulations provide for forest planning and management by the Forest Service on two levels: (1) forest level and (2) individual project level." Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012). "Forest Plans aim to balance environmental and economic concerns, while furthering NFMA's purpose to provide for diversity of plant and animal communities' in national forests." Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 850 (9th Cir. 2013) (citations omitted). Substantial deference is owed to the Forest Service's interpretation and implementation of its Forest Plan. Id. Therefore, a challenge under NFMA will prevail only if a Forest Service decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Native Ecosystems Council, 697 F.3d at 1056.

The Forest Service developed the current Forest Plan for the Nez Perce National Forest in 1987 and has amended it on several occasions. The Forest Plan, Overview, Appendices, and Amendments are contained in the Administrative Record. (FS2474-2956.)

2. NEPA

NEPA has been described as "our basic national charter for protection of the environment." North Idaho Community Action Network v. United States Department of Transportation, 545 F.3d 1147, 1153 (9th Cir. 2008) (citing Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172, 1185 (9th Cir. 2008)). NEPA requires agencies to have available and carefully consider "detailed information concerning significant environmental impacts' and make that information available to the public." Id. (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)). Stated another way, NEPA requires a federal agency to "consider every significant aspect of the environmental impact of a proposed action... [and] inform the public that it has indeed considered environmental concerns in its decisionmaking process.'... In order to accomplish this, NEPA imposes procedural requirements designed to force agencies to take a hard look' at environmental consequences." Earth Island Institute, 351 F.3d at 1300 (internal citations omitted). NEPA "exists to ensure a process" as opposed to imposing substantive requirements on federal agencies. McNair, 537 F.3d at 1000 (citation omitted).

Procedural requirements under NEPA and its regulations include a scoping process to determine whether an environmental impact statement is necessary, scientific analysis, expert agency comments, public involvement, discussion of significant environmental impacts, and disclosure of information regarding reasonable alternatives to the proposed action. See generally 40 C.F.R. §§ 1500.1; 1502.1. A DEIS must disclose and discuss all major points of view on the environmental impact of alternatives to the proposed action as well as the proposed action itself. 40 C.F.R. § 1502.9. An FEIS must respond to comments solicited and received from certain federal agencies, appropriate state and local agencies authorized to develop and enforce environmental standards, Indian tribes where necessary, the applicant, and the public. 40 C.F.R. § 1503.1. Finally, an FEIS must respond to the comments using one of the options specified in the regulations and attach all substantive comments or summaries thereof. 40 C.F.R. § 1503.4.

3. Endangered Species Act

The ESA imposes substantive and procedural duties on various federal agencies designed to protect endangered and threatened species. Conservation Congress v. U.S. Forest Service, 720 F.3d 1048, 1051-52 (9th Cir. 2013) (citing 16 U.S.C. § 1531, et seq. and Ctr. For Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1106 (9th Cir. 2012)). Substantively, as relevant here, the Forest Service must insure that any project it authorizes "is not likely to 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." Id. at 1052 (citing 16 U.S.C. § 1536(a)(2)). Procedurally, as relevant here, the Forest Service must consult with the Fish and Wildlife Service "to determine the likely effects of any proposed action on species and their critical habitat." Id. (citation omitted). "Critical habitat" is defined as areas that are "essential to" or "essential for" the conservation of a particular listed species. 16 U.S.C. §§ 1532(5)(A)(i), (ii).

DISCUSSION

Each of Plaintiffs' five arguments alleges a NEPA violation. Two also allege NFMA violations. One alleges an ESA violation. The Court will address each argument in the order raised by Plaintiffs.

1. The Forest Service's Alleged Violation of NEPA by Failing to Disclose and Take a Hard Look at Project Impacts on Canada Lynx and by Failing to Prepare a Supplemental NEPA Analysis of Post-lawsuit Lynx Analysis and Decision Documents

In Alliance for the Wild Rockies v. Lyder , United States District Judge Donald W. Molloy provided a good summary of the characteristics of the Canada lynx and its habitat that provides helpful context to the arguments before this Court:

Lynx canadensis, the Canada lynx ("lynx"), is a medium-sized cat similar in size and appearance to a bobcat. 74 Fed. Reg. 8616, 8616 (Feb. 25, 2009). Unlike the bobcat, lynx have long legs and large paws making them well-adapted for hunting and surviving in areas that experience cold winters with "deep, fluffy snow." Id.
The lynx is a specialized predator of snowshoe hare, which comprises a majority of its diet. Id. at 8616-17. With its adaptations for snowy conditions and diet heavily based on snowshoe hares, lynx habitat consists of "moist boreal forests that have cold, snowy winters and a snowshoe hare prey base." Id. at 8616. The boreal forest landscape must be large enough to ensure adequate snowshoe hares are available. Id. The home range of an individual lynx varies based on the abundance of prey. As snowshoe hare numbers decline, lynx require a broader landscape to survive and reproduce. Id.
The contiguous United States is at the southern edge of the boreal forest range, resulting in limited and patchy forests that can support snowshoe hare and lynx populations. Canada on the other hand, with an expansive boreal forest and fewer snowshoe hare predators and competitors such as bobcats, has higher lynx densities and an overall greater lynx population than found in the contiguous United States. Id. at 8717.

Alliance for Wild Rockies v. Lyder, 728 F.Supp.2d 1126, 1127-28 (D. Mont. 2010).

In their original Complaint, Plaintiffs argued that the Forest Service and Fish and Wildlife Service violated the ESA and NEPA by failing to survey the Forest for Canada lynx as required by the Northern Rockies Lynx Management Direction Biological Opinion, failing to consult under Section 7 of the ESA on Project impacts to the Canada lynx even though there is evidence that the species "may be present" in the Project area, and failing to take a hard look at Project impacts to this species. Pls.' Mem. at 3. They raised their initial concerns in a 60-day notice of intent to sue under the ESA, and, after receiving a Freedom of Information Act ("FOIA") response with information allegedly not disclosed in the Project NEPA documents, raised additional concerns in a supplemental 60-day notice of intent to sue.[5] Pls.' Mem. at 3-4 (citing FS23902-23908, FS 23927-23945). Plaintiffs contend that Defendants did not remedy any of the noted violations. Pls.' Mem. at 4 (citing FS23909-23922; FS23946-23971). Their argument continues that although Defendants analyzed impacts and consulted on the Canada lynx after Plaintiffs filed suit, they did not subject the resulting analysis, consultation, and decision documents to NEPA review. Id. at 5. Plaintiffs view this as an attempt to circumvent the public scrutiny requirement of NEPA and argue that the "post-hoc" ESA consultation and findings were based on ESA standards rather than the separate and distinct NEPA standards. Id.

Because Defendants ultimately engaged in the ESA consultation with FWS, the parties stipulated that Plaintiffs could amend their Complaint to withdraw their now moot ESA claims for the Canada lynx and add a NEPA claim alleging the need for supplemental NEPA analysis and review of the "new" Canada lynx consultation and decision documents. Stipulation, Dkt. 18. Therefore, this claim now involves only a NEPA cause of action against the Forest Service. Plaintiffs additionally claim that the "post-hoc" consultation documents should not have been included in the Administrative Record.

A. Inclusion of Post-Decision and Post-Lawsuit Analysis, Consultation, and Decision Documents

The Plaintiffs object to including in the Administrative Record the following "post-hoc" documents: (1) the Forest Service's January 30, 2013 Little Slate Project Biological Assessment on the Canada Lynx concluding that the proposed action is "not likely to adversely affect" transient Canada lynx FS27324-27356); (2) the Forest Service's January 30, 2013 letter to the FWS requesting concurrence with the Biological Assessment (FS27357); (3) the FWS February 11, 2013 concurrence letter (FS27362-27370); and (4) various supporting charts/maps (FS27371-72; 27373-78; 27379-81; 27832-83; 27384).

Plaintiffs contend that inclusion of these documents in the Administrative Record was improper because they do not fall within any of the exceptions to the general rule that judicial review must focus on the administrative record in existence at the time of the agency decision.

As stated above, except in limited circumstances, the Court may consider only the administrative record as it existed at the time the challenged decision was made. Thompson, 885 F.2d at 555. However, as Plaintiffs note, the Ninth Circuit recognizes four exceptions allowing judicial consideration of extra-record evidence:

(1) if admission is necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) if the agency has relied on documents not in the record, (3) when supplementing the record is necessary to explain technical terms or complex subject matter, or (4) when plaintiffs make a showing of agency bad faith.

Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (internal citation and quotation marks omitted).

The Court notes that the "limited exceptions operate to identify and plug holes in the administrative record" and "are narrowly construed and applied." Id. Plaintiff contends, and the Court agrees, that the post-decision materials do not fall within any of the stated exceptions allowing consideration. However, Defendants counter that the post-decision ESA consultation - conducted out of an abundance of caution after Plaintiffs submitted the FOIA material with their supplemental notice of intent to sue - did not undermine the Forest Service's existing NEPA analysis. Defs.' Mem. at 9, Dkt. 24-1.

In support of their argument that the post-hoc documents should not be considered, Plaintiffs rely on Western Watersheds Project v. Rosenkrance, No. 4:09-cv-00298-EJL, 2011 WL 39651, at *7 (D. Idaho Jan. 5, 2011) which held that reliance on "post-hoc rationalizations and after-the-fact studies [on bull trout] do not satisfy NEPA's hard look' requirement for the decisionmaker." Pls.' Mem. at 7. However, as noted by Defendants, the cited case is inapposite.

In Western Watersheds, the BLM had based its Environmental Assessment ("EA") on the mistaken belief that there were no threatened or endangered species on four allotments being considered for grazing permits when, in fact, ESA-listed bull trout were present. Once the mistake was discovered, the BLM conducted a new Biological Assessment ("BA"), determined that there would be no significant impact, obtained a letter of concurrence, and sought to supplement the record with those documents. The court found that the BLM could not cure its "deficient NEPA analysis and circumvent the public's right to comment on the data upon which the agency uses to reach its decision." Western Watersheds Project, 2011 WL 39651, at *7. In other words, the court would not allow supplementation of the record to correct the mistaken assumption upon which the BLM's decision was based. Here, however, the post-hoc documents do not reveal a mistaken assumption in the FEIS but rather confirm the finding that no Canada lynx occupy the Forest as that term is defined in the Northern Rockies Lynx Management Direction. Furthermore, the Forest Service did not seek to alter its NEPA analysis with new information on the Canada lynx.

Although Western Watersheds Project is not on point, given that the post-hoc documents do not fall within the oft-cited narrowly construed exceptions to the general rule, the Court will not consider them for purposes of determining whether Defendants violated NEPA by failing to take a hard look at the effects of the Project on the Canada lynx. The Court obviously must consider them for purposes of determining whether the Forest Service should have prepared an SEIS.

B. Hard Look at the Canada Lynx

It is beyond dispute that "NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken." See 40 C.F.R. § 1500.1(b). See also Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004). Plaintiffs challenge the sufficiency of the Forest Service's analysis on the Canada lynx and assert that information on unverified sightings of Canada lynx on the Forest should have been made available to the public for comment.

(1) Preliminary Matters

Before addressing Plaintiffs' arguments, the Court must first resolve Plaintiffs' claim that certain documents were not provided. Plaintiffs note that the 2008 Lynx Hair Snare Survey (FS22038-42), the 2007 Lynx Surveys Final Report (FS22055-60), and the 2010 wildlife specialist report, discussed by Defendants as satisfying their "brief" analysis on the Canada lynx, were not included in the record or NEPA documents. Pls.' Reply at 2. In response, the Forest Service claims the documents predated the DEIS and FEIS and were always part of the record. Defs. Reply at 2 (citing FS22038-60).

The Court notes that the wildlife specialist report was not among the items attached to the supplemental notice of intent to sue as having been received only in response to the FOIA request. For that reason, and based on Defendants' representation that this document has always been in the record, the Court will assume that it was a part of the record. The Court will also consider the 2007 and 2008 surveys which did not detect Canada lynx because Plaintiffs waived the argument by failing to bring a motion to challenge the record. See Scheduling Order, Dkt. 13 (setting deadline of March 15, 2013 for Plaintiffs to file any motion to challenge the contents of the Administrative Record).

(2) Sufficiency of Analysis

In contending that the Forest Service did not take a hard look at the impact of the Project on the Canada lynx, Plaintiffs state:

The Draft Environmental Impact Statement ("EIS") for the Project contains exactly one sentence referencing Canada lynx, noting only that "Canada lynx is a federally listed threatened species and the U.S. Fish and Wildlife Service ("FWS") has declared the Nez Perce Forest to be unoccupied by lynx; therefore, it will not be discussed further." FS95. The Final EIS merely reiterates that Project impacts to the Canada lynx were not analyzed. FS321, 325. This is the extent of ...

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