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Alliance For The Wild Rockies v. United States Forest Service

United States District Court, D. Idaho

August 31, 2016

ALLIANCE FOR THE WILD ROCKIES, et al., Plaintiffs,
v.
UNITED STATES FOREST SERVICE, et al., Defendant.

          MEMORANDUM DECISION AND ORDER

          EDWARD J. LODGE UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Pending before the Court in the above-entitled matter are the parties' Cross-Motions for Summary Judgment. The matters have been fully briefed and are ripe for the Court's consideration. Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the Motions shall be decided on the record before this Court without a hearing.

         FACTUAL AND PROCEDURAL BACKGROUND

         1. The Project

         This matter concerns the United States Forest Service's (Forest Service) approval of the Lost Creek-Boulder Creek Restoration Project (LCBC Project or the Project). (FS077765.) The LCBC Project Area encompasses approximately 80, 000 acres of National Forest System lands in the western portion of the New Meadows Ranger District of the Payette National Forest (PNF). (FS077784.) The Project Area is located in Boulder Creek, a tributary to the Little Salmon River, and in the headwaters of the Weiser River and the West Fork of the Weiser River. The proposed activities include 40, 000 acres of vegetation treatments - comprised of 22, 000 acres of commercial treatments, 18, 000 acres of non-commercial treatments, and associated actions such as road maintenance and temporary road construction; 45, 000 acres of prescribed fire; watershed improvements; and recreation improvements. (FS077785.) The stated purpose of the Project is to move vegetation and subwatersheds toward desired conditions, manage recreation use, and contribute to the economic vitality of the adjacent communities. (FS077797.)

         The Project was developed consistent with the Collaborative Forest Landscape Restoration Program (CFLRP)[1] using a collaborative process between the Payette Forest Coalition (PFC)[2] and the Forest Service. (FS078856.) The PFC met regularly for two years beginning in 2009 to develop recommendations for the Project. Those recommendations were then used by the Forest Service to formulate the proposed action. In March of 2014, the Forest Service issued its Final Environmental Impact Statement for the LCBC Project (LCBC FEIS). (FS077765.) The Record of Decision (ROD) was issued in September of 2014 wherein the Forest Service selected Alternative B-modified for implementation. (FS078848, FS078858.)

         2. Procedural Background

         This action is brought by Plaintiffs, Alliance for the Wild Rockies, Idaho Sporting Congress, and Native Ecosystems Council, who have raised claims under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (APA), alleging violations of the Endangered Species Act, 16 U.S.C. § 1531 et seq. (ESA), National Environmental Policy Act, 42 U.S.C. § 4331 et seq. (NEPA); and the National Forest Management Act, 16 U.S.C. § 1600 et seq. (NFMA). (Dkt. 25.) Plaintiffs ask the Court to set aside the Project, enjoin its implementation, and award costs and other expenses incurred in bringing the case. The Forest Service responds that its decisions and approval of the Project satisfies the applicable standards and statutory requirements. (Dkt. 27.)[3] Adams County and the PFC have intervened as Defendants in this case. (Dkt. 28, 51, 31.)[4] The parties have each filed Motions for Summary Judgment that have been fully briefed and are ripe for the Court's consideration. (Dkt. 33, 36, 38.) The Court finds as follows.

         STANDARD OF REVIEW

         1. Summary Judgment

         Federal Rule of Civil Procedure 56 provides, in pertinent part, that the “Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to “go beyond the pleadings” and “designate specific facts” in the record to show a trial is necessary to resolve genuine disputes of material fact. Id. The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element which is essential to the non-moving party's case and upon which the non-moving party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322.

         “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For summary judgment purposes, an issue must be both “material” and “genuine.” An issue is “material” if it affects the outcome of the litigation. An issue is “genuine” if it must be established by “sufficient evidence supporting the claimed factual dispute...to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Hahn v. Sargent, 523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat. Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968)); see also British Motor. Car Distrb. v. San Francisco Auto. Indus. Welfare Fund, 883 F.2d 371, 374 (9th Cir. 1989). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita, 475 U.S. at 587 (citation omitted).

         In considering a motion for summary judgment, the Court does not make findings of fact or determine the credibility of witnesses, Anderson, 477 U.S. at 255; rather, it must draw all inferences and view all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587B88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008).

         2. Administrative Procedure Act

         Judicial review of administrative agency decisions is made under the APA. 5 U.S.C. § 702. Such review is based on the administrative record compiled by the agency B not on independent fact-finding by the district court. Camp v. Pitts, 411 U.S. 138, 142 (1973). APA claims may be resolved via summary judgment pursuant to the standard set forth in Rule 56. See Nw. Motorcycle Assn. v. United States Dept. of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994).

         The claims in this case raise factual or technical disputes, implicating agency expertise, which are reviewed under the “arbitrary and capricious” standard. See Price Rd. Neighborhood Assn., Inc. v. United States Dept. of Transp., 113 F.3d 1505, 1508 (9th Cir. 1997) (discussing the two standards governing review of agency actions involving NEPA); Alaska Wilderness Rec. & Tour. v. Morrison, 67 F.3d 723 (9th Cir.1995). That standard requires the Court to determine whether the agency action is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A).

         “Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision 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.” Motor Vehicle Mfrs. Assn. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1110 (9th Cir. 2015) (citations omitted). The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Motor Vehicle, 463 U.S. at 43. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice made.” Id. (citation omitted); see also City of Sausalito v. O'Neill, 386 F.3d 1186, 1206 (9th Cir. 2004) (quoting Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 953B54 (9th Cir. 2003)). In reviewing that explanation, the court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. (citations omitted); see also Marsh v. Or. Nat. Resources Council, 490 U.S. 360, 378 (1989).The court may not overturn an agency decision simply because it disagrees with the decision or with the agency's conclusions about environmental impacts. River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010) (citations omitted). The “court may not substitute its judgment for that of the agency concerning the wisdom or prudence of the agency's action.” Id. (citation and marks omitted).

         When applying this standard, courts grant substantial deference to the decisions and actions of federal agency defendants in adopting and implementing certain agency activities. See Trout Unlimited v. Lohn, 559 F.3d 946, 958 (9th Cir. 2009) (quoting Nat. Wildlife Fed. v. United States Army Corps of Engrs., 384 F.3d 1163, 1174 (9th Cir. 2004) (“Where scientific and technical expertise is necessarily involved in agency decision-making, ...a reviewing court must be highly deferential to the judgment of the agency.”)). This deference is particularly appropriate where, as here, the Court is reviewing “issues of fact, ” “where analysis of the relevant documents requires a high level of technical expertise.” City of Sausalito, 386 F.3d at 1206.

         DISCUSSION

         1. Standing

         The Intervenor Defendants argue the Plaintiffs lack Article III standing to bring their claims in this case. (Dkt. 39 at 11-15.)[5] Plaintiffs maintain they have standing based on the declarations submitted by members of each of the organizational Plaintiffs. (Dkt. 41.)

         Article III of the Constitution limits the power of the federal courts such that they may only adjudicate live “cases” or “controversies.” U.S. Const. art. III, § 2. The doctrine of standing “requires federal courts to satisfy themselves that the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his [or her] invocation of federal-court jurisdiction.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (citations and quotations omitted). “An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 169 (2000) (citation omitted). The plaintiff bears the burden of demonstrating that it has standing from the “commencement of the litigation.” Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1171 (9th Cir. 2002). At the summary-judgment stage, “the plaintiff [cannot] rest on...mere allegations, but must set forth by affidavit or other evidence, specific facts” to establish standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560B61 (1992) (citation and quotations omitted).

         The Plaintiffs in this case have shown that the interests of their members in recreational, preservation, and aesthetic enjoyment of the Project Area are related to each of the respective organizations' purposes and that neither the claims asserted nor the relief requested require the participation of any individual members of the organizations. (Dkt. 25 at ¶¶ 16-19) (Dkt. 33-2, 33-3, 33-4.) The Court must, therefore, determine whether Plaintiffs have shown its members would otherwise have standing to sue in their own right.

         For individual members to satisfy Article III's standing requirements, the Plaintiffs must show (1) an “‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant [causation]; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision [redressability].” Friends of the Earth, 528 U.S. at 180B81 (citing Lujan, 504 U.S. at 560B61); see also WildEarth Guardians v. United States Dept. of Agric., 795 F.3d 1148, 1154 (9th Cir. 2015). Additionally, the interests sought to be protected must arguably be within “the zone of interests” protected by the statute in question. Assn. of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153B54 (1970); W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485B86 (9th Cir. 2011).

         A. Injury in Fact

         “The ‘injury in fact' requirement in environmental cases is satisfied if an individual adequately shows that [he or] she has an aesthetic or recreational interest in a particular place, or animal, or plant species and that interest is impaired by a defendant's conduct.” Ecological Rights Foundation v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000) (citing cases). “[T]he threshold question of citizen standing...is whether an individual can show that [he or] she has been injured in [his or] her use of a particular area because of concerns about violations of environmental laws, not whether the plaintiff can show there has been actual environmental harm.” Id. at 1151 (standing under the Clean Water Act).

         Environmental plaintiffs may satisfy the injury in fact requirement by showing that “they will suffer harm by virtue of their geographic proximity to and use of areas that will be affected” by the challenged decision. Citizens for Better Forestry v. United States Dept. of Agric., 341 F.3d 961, 971 (9th Cir. 2003). “[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.” Friends of the Earth, 528 U.S. at 183 (citations omitted); see also Ecological Rights, 230 F.3d at 1149 (“Repeated recreational use itself, accompanied by a credible allegation of desired future use, can be sufficient, even if relatively infrequent, to demonstrate that environmental degradation of the area is injurious to that person.”).

         In this case, certain of Plaintiffs' claims, in particular the NEPA claims, raise procedural injuries. (Dkt. 25.) “To satisfy the injury-in-fact requirement of Article III, ‘a plaintiff asserting a procedural injury must show that the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.'” Center for Bio. Diversity v. United States Fish and Wildlife Serv., 807 F.3d 1031, 1043 (9th Cir. 2015) (citations and quotations omitted); Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir. 2008) (“Plaintiffs alleging procedural injury must show only that they have a procedural right that, if exercised, could protect their concrete interests.”). For an environmental interest to be “concrete, ” there must be a “geographic nexus between the individual asserting the claim and the location suffering an environmental impact.” Kraayenbrink, 632 F.3d at 485.

         Plaintiffs in this case have sufficiently plead an injury in fact. The Second Amended Complaint includes a “Statement of Standing” identifying the basis for Plaintiffs' standing. (Dkt. 25 at &&16-19.) Attached to Plaintiffs' Motion for Summary Judgment are the Declarations of three members who Plaintiffs assert satisfy the standing requirement for each of the named organizational Plaintiffs. (Dkt. 33.)[6] The Court has reviewed these Declarations and finds they satisfy the injury in fact requirement.

         Ron Mitchell is a member and Executive Director of Idaho Sporting Congress (“ISC”) and also a member of the Alliance for the Wild Rockies. (Dkt. 33-4, Mitchell Dec.) The ISC is dedicated to protecting public lands and their natural resources. Id. Mr. Mitchell states he, and other members, have used and intend to continue using and enjoying lands in the PNF and the Project Area since 1959 for hunting, fishing, nature study, and photographic pleasures. The Project's Activities, Mr. Mitchell states, will prevent him and the other members of the ISC's from using and enjoying the lands.

         The Intervenor Defendants argue Mr. Mitchell's Declaration is not specific enough and too conclusory to satisfy the standing requirements; in particular as to his plans to recreate in the Project Area. (Dkt. 44 at 2.) The Court disagrees. Mr. Mitchell's first Declaration states he has visited the area since he was fourteen and has “concrete plans and firm intention to visit the Project Area in the summer of 2016 to fish and hike, and in the autumn of 2016...” and will continue to do so for many years to come. (Dkt. 33-4, Mitchell Dec. at 2.) This is sufficient to satisfy Article III standing for both ISC and the Alliance for the Wild Rockies; as Mr. Mitchell is a member of both organizations.

         Michael Garrity's is the Executive Director and a member of the Alliance for the Wild Rockies which is an organization dedicated to the protection and preservation of the native biodiversity of the Northern Rockies Bioregion. (Dkt. 33-2, Garrity Dec.) Mr. Garrity describes his interests in the area, as well as those of other members, and states he has “concrete plans and firm intention to visit the Project area in the Fall of 2017 and Fall of 2026” to use and enjoy the lands. (Dkt. 33-2, Garrity Dec. at & 6.) Those interests will be harmed, he states, by allowing the Project's proposed activities to move forward without complying with the substantive and procedural protections guaranteed by the applicable statutes making up the claims in this case.

         Similarly, Dr. Sara Jane Johnson's Declaration states that she is the Executive Director and a member of the Native Ecosystems Council which is dedicated to the protection and preservation of native wildlife and plant species of the Northern Rockies Bioregion. (Dkt. 33-3, Johnson Dec.) Dr. Johnson notes her specific participation and interest in the management of wildlife habitat and the impacts of logging on wildlife. Dr. Johnson states her planned 2015 visit to the LCBC Project Area failed but that she has plans and firm intention to make the visit in the summer of 2017 and again in the early 2020s. (Dkt. 33-3, Johnson Dec. at & 4.) This Declaration lists the particular interests of the other members who use and enjoy the Project Area and claim the Project will harm those interests including the recreational, educational, and aesthetic interests with regard to the wildlife in the area and the old forest habitats.

         The Court finds the Garrity and Johnson Declarations to be sufficient to show an injury in fact as to each of their organizations. The Defendants are alleged to have violated statutes designed to protect an individual's aesthetic enjoyment and recreational values of the forests such as those interests the Plaintiffs possess in the Project Area. Further, the interests claimed by each Declarant are concrete and particular to the Project Area. The Declarants' both aver that they have “concrete plans and a firm intention” to visit the Project Area in the future. Further, the Declarations show the injury alleged is actual or imminent given the Project's activities will negatively impact the Plaintiffs' interests in the area and lessen their ability to use and enjoy the Project Area. See Friends of the Earth, 528 U.S. at 183. The Court also finds these interests sought to be protected are within the zone of interests of the statutes in question in this case.

         B. Causation and Redressability

         As to the remaining standing elements of causation and redressability, the Court finds both have been met here. Causation requires an analysis of whether the alleged injury is fairly traceable to the defendant, while determining redressability “requires an analysis of whether the court has the power to right or to prevent the claimed injury.” Barnum Timber Co. v. United States E.P.A., 633 F.3d 894, 899 (9th Cir. 2011). Once plaintiffs seeking to enforce a procedural requirement establish a concrete injury, “the causation and redressability requirements are relaxed.” Kraayenbrink, 632 F.3d at 485; Salmon Spawning, 545 F.3d at 1226 (citing Lujan, 504 U.S. at 572 n. 7) (“A showing of procedural injury lessens a plaintiff's burden on the last two prongs of the Article III standing inquiry, causation and redressibility.”). “Plaintiffs alleging procedural injury can often establish redressibility with little difficulty, because they need to show only that the relief requested—that the agency follow the correct procedures—may influence the agency's ultimate decision of whether to take or refrain from taking a certain action. This is not a high bar to meet.” Salmon Spawning, 545 F.3d at 1226B27 (internal citation omitted). Nonetheless, “the redressibility requirement is not toothless in procedural injury cases.” Id.

         The Court finds that Plaintiffs' Declarations establish that the injury alleged is fairly traceable to the challenged action of the Defendants and it is likely that the injury will be redressed by a favorable decision. The Declarations each tie the alleged harm to the Project's proposed activities which, if Plaintiffs prevail in this case, would not occur. Based on the foregoing, the Court concludes the Plaintiffs have standing.

         2. Endangered Species Act Claim

         The first claim for relief alleges the Forest Service violated the ESA by failing to 1) ensure there is no adverse modification of the bull trout, a listed threatened species under the ESA, and its critical habitat and 2) consult and/or reinitiate consultation with the appropriate federal agency on actions that may affect the bull trout or its critical habitat. (Dkt. 25 at && 87-91.) Specifically, Plaintiffs argue the Forest Service violated the ESA by failing to consult with the United States Fish and Wildlife Service (“FWS”) on the bull trout critical habitat designation in the 2003 Payette Forest Plan. (Dkt. 41 at 25-26.) The Forest Service counters that it satisfied the ESA's consultation requirements, reinitiation of consultation is not required in this case, and the Plaintiffs have not shown an injunction is warranted. (Dkt. 36 at 28-30.) The Intervenor Defendants maintain the Forest Service's ESA consultation on bull trout was sufficient. (Dkt. 39 at 21-25.)

         Congress enacted the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544, “to halt and reverse the trend toward species extinction, whatever the cost.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978). Section 7 of the ESA requires an agency to ensure that their discretionary actions will not “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.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.12(a). The agency proposing an activity “shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat[s].” 50 C.F.R. § 402.14(a). This requires the agency to inquire with the relevant wildlife agency to determine whether any listed species or critical habitat are present in the proposed action area. See 16 U.S.C. § 1536(c)(1). If an endangered species may be present, a biological assessment (“BA”) is prepared. Id. Where it is determined that a discretionary agency action “may affect” a listed species or critical habitat, the implementing agency has a duty under Section 7 of the ESA to consult, either formally or informally, with the appropriate expert wildlife agency. See Karuk Tribe of Cal. v. United States Forest Serv., 681 F.3d 1006, 1027 (9th Cir. 2012). Formal consultation is required when the Forest Service has determined that an action is “likely to adversely affect” a listed species. Id. Formal consultation is not required if 1) the Forest Service finds, either in its biological assessment or through informal consultation, that while a project “may affect” a listed species, the species is “not likely to be adversely affected, ” and 2) the expert wildlife agency concurs in writing. 50 C.F.R. §§ 402.12(j)B(k), 402.13(a), 402.14(b)(1).

         After the initial consultation process is complete, an agency has a duty to reinitiate formal consultation under certain circumstances, including where 1) “the amount or extent of taking specified in the incidental take statement is exceeded, ” 2) “if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered, ” or 3) “[i]f the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion.” 50 C.F.R. § 402.16.[7]

         Generally, “the minimum threshold for an agency action to trigger consultation with the [Fish&] Wildlife Service is low.” Kraayenbrink, 632 F.3d at 496; see also Karuk Tribe, 681 F.3d at 1027 (“Any possible effect, whether beneficial, benign, adverse or of an undetermined character” triggers the requirement.) (citation and quotation omitted). “The consultation requirement reflects a ‘conscious decision by Congress to give endangered species priority over ...


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