Court: District Court, D. Montana; September 25, 2014; Federal District Court
The legal action initiated by various environmental organizations seeks declaratory and injunctive relief under the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), and the Endangered Species Act (ESA). The plaintiffs challenge the U.S. Forest Service and U.S. Fish and Wildlife Service regarding two main issues: the authorization of the Glacier Loon Fuels Reduction and Forest Health Project on the Flathead National Forest and the lack of environmental analysis related to decisions about the "Legacy Lands" acquisition and subsequent logging in areas critical for grizzly bears and lynx.
The court's order grants in part and denies in part the parties' motions for summary judgment, while denying the plaintiffs’ motion to supplement the record.
In 2009, approximately 111,740 acres of private land, referred to as “Legacy Lands,” were acquired by the Forest Service from The Nature Conservancy for $1, with the Conservancy receiving a $250 million tax refund. The Conservancy retained reserved logging rights on these lands, governed by specific operating procedures.
The Glacier Loon Project encompasses 37,320 acres, including both public and private lands, aimed at reducing wildfire risks, maintaining forest health, and providing commercial timber. It involves various silvicultural treatments, temporary road construction, and road closures. The project area is significant for several species listed under the ESA, primarily located in the Northern Continental Divide Grizzly Bear Ecosystem, which includes designated grizzly recovery zones and Lynx Analysis Units. An Environmental Assessment for the project was published in August 2012.
The Forest Service conducted a Biological Assessment of the Project and determined it would have no effect on bull trout, bull trout critical habitat, and water howellia, and concluded there would be no jeopardy to the wolverine population. It also found the Project unlikely to adversely affect grizzly bears or to significantly impact Canada lynx and their critical habitat. On February 13, 2013, the Forest Service authorized the Project through a Decision Notice/Finding of No Significant Impact. Plaintiffs filed a timely administrative appeal, which was denied by the Forest Service. The Project was anticipated to start by mid-July 2014 and be completed by 2019. Plaintiffs sought a preliminary injunction on July 1, 2014, which the Court denied on July 14, 2014, leading to an appeal to the Ninth Circuit that is still pending. Despite this appeal, the district court retains jurisdiction to address the merits of the case.
The Plaintiffs raised several concerns about the Project, questioning the Forest Service's "no effect" determinations, compliance with the Endangered Species Act (ESA), the National Forest Management Act (NFMA), and the sufficiency of analyses concerning grizzly bears and lynx. They also challenged the decision not to prepare an Environmental Impact Statement (EIS). The summary conclusion indicates that, while many of the Plaintiffs' claims lack merit, the Forest Service did not adequately analyze the effects on water howellia and bull trout, failed to follow ESA procedures regarding the wolverine, and misapplied standards in its assessment of the grizzly bear.
A party may be granted summary judgment when it shows there is no genuine dispute over any material fact and is entitled to judgment as a matter of law, as per Federal Rule of Civil Procedure 56(a). Summary judgment is appropriate when the evidence allows only one conclusion, and only disputes over facts that materially affect the lawsuit's outcome can prevent its entry. Courts review claims under the Endangered Species Act (ESA), National Environmental Policy Act (NEPA), and National Forest Management Act (NFMA) according to the Administrative Procedure Act (APA). Under the APA, agency actions may be set aside if deemed arbitrary, capricious, or an abuse of discretion. The court's review is narrow and does not substitute its judgment for that of the agency unless the agency's decision is based on improper factors or fails to consider important aspects. Valid agency actions are supported by relevant factors with a rational connection to the choices made. The agency's decision will be upheld if the record supports it, even if alternative findings are possible. The analysis specifies that the Legacy Lands acquisition does not require ESA or NEPA analysis unless it constitutes “agency action” or “major federal action.” Plaintiffs argue that the acquisition and related logging rights do qualify for such analysis, which is upheld regarding the Agreed Operating Procedures and specific logging projects. According to the ESA, agency action includes any federal agency action authorized, funded, or carried out.
The ESA implementing regulations define "action" as any activities or programs authorized, funded, or carried out by federal agencies, encompassing efforts to conserve listed species or their habitats, regulation promulgation, and the granting of various permissions or licenses. The term “agency action” is broadly interpreted, as established in *Karuk Tribe of Cal. v. U.S. Forest Serv.*, indicating that an agency's discretionary decisions regarding private activities can trigger ESA consultation duties.
The inquiry into whether an action qualifies as “agency action” involves two questions: whether a federal agency has authorized or funded the activity and whether it has discretion to influence the activity for the benefit of a protected species. In the case involving private logging rights on land donated to the Forest Service, plaintiffs argue that the acquisition of Legacy Lands constitutes “agency action” requiring ESA consultation. This land was donated at no cost under federal statutes allowing the Secretary to accept such gifts.
However, defendants contend that the Secretary had no discretion in accepting the donation due to statutory obligations regarding conservation bonds, thus failing to meet the criteria established in *Karuk Tribe*. Additionally, the Agreed Operating Procedures between The Nature Conservancy and the Forest Service for managing commercial logging projects on the Legacy Lands are considered agency action, as the negotiation and execution of contracts fall under the ESA's definition of actions requiring consultation. The joint implementation of these procedures demonstrates affirmative authorization by the Forest Service.
In *Conner v. Burford*, the Ninth Circuit ruled that the Bureau of Land Management must assess all potential impacts on protected species from post-leasing activities before finalizing lease agreements. Furthermore, the Forest Service has the authority to adopt additional protective measures for these species when authorizing Agreed Operating Procedures. The court affirmed that the establishment of these procedures constitutes "agency action" that requires analysis under the Endangered Species Act (ESA). Consequently, the Forest Service is prohibited from implementing the Agreed Operating Procedures until this analysis is completed.
Regarding site-specific logging projects, a potential mootness issue arises, as Defendants claim that all logging projects by The Nature Conservancy in the Glacier Loon area are completed. Although harvest activities may continue on Legacy Lands, it remains unclear if these lands fall within the project area. The Ninth Circuit has previously deemed environmental claims moot when no remedial action remains available.
The court also addressed the agency's duty to consult under Section 7 of the ESA. If private activities proceed under vested rights or existing licenses, an agency may not have to consult if it takes no further action regarding those activities. The relationship between the Forest Service and The Nature Conservancy is complex; while The Nature Conservancy must submit a Harvest Plan for Forest Service review, the agency's discretion is limited to compliance with the Agreed Operating Procedures. If the Forest Service fails to respond within a specified timeframe, the Harvest Plan is automatically accepted, allowing the logging to proceed without further agency intervention. Thus, it appears the Forest Service lacks the authority to halt specific logging projects under the current circumstances.
The Ninth Circuit has expressed concerns that invoking the bureaucratic procedures of Section 7 may hinder valuable communication between private entities and federal agencies when the agency is only providing species protection advice, potentially harming the conservation of threatened and endangered species (Marbled Murrelet, 83 F.3d at 1075). In the current case, the interaction between the Forest Service and private entities appears to exceed mere advice and may constitute authorization for specific projects. The first prong of the Karuk Tribe test is satisfied, but the second prong regarding the Forest Service's discretion over private actions is less clear. The Agreed Operating Procedures mandate environmental protections, such as compliance with specific conservation agreements, and the reserved logging rights regulation grants the Forest Service discretionary authority over road construction (36 C.F.R. 251.15(a)(5)). The Ninth Circuit has maintained a low threshold for assessing discretionary control, stating that as long as a federal agency retains "some discretion" to benefit a protected species, the consultation requirement under Section 7(a)(2) is triggered (Nat. Resources Defense Council, 749 F.3d at 784). The agency only lacks discretion if an external legal obligation prevents it from benefiting the species. The Agreed Operating Procedures do not eliminate the Forest Service's discretion to influence logging plans for protected species. Consequently, since both prongs of the Karuk Tribe test are met, the approval of specific logging projects is considered "agency action" under the Endangered Species Act (ESA). As there are no current site-specific projects in the area, the agency is obligated to conduct necessary analyses for future projects.
Under the National Environmental Policy Act (NEPA), federal agencies must thoroughly evaluate the environmental impacts of their proposed actions prior to final decisions (St. of Cal. v. Block, 690 F.2d 753, 761). NEPA mandates specific procedural steps and analyses for "major federal actions" that could significantly affect the environment, which encompass new and ongoing activities financed or regulated by federal agencies, as well as new or revised agency rules and specific project approvals (42 U.S.C. 4332(2)(C); 40 C.F.R. 1508.18).
“Major federal action” under NEPA is a jurisdictional prerequisite determined by (1) federal funding of the action and (2) the federal agency’s level of involvement and control, as established in Rattlesnake Coalition v. E.P.A. This standard differs from the broader “agency action” standard under the ESA, emphasizing that NEPA requires a significant action rather than a marginal one. In the case of Legacy Lands Acquisition, the Forest Service lacked discretionary control over land acceptance, distinguishing it from cases where agencies could impose conditions, thereby not constituting “major federal action” under NEPA. Consequently, if there is no ‘agency action’ under the ESA, there cannot be ‘major federal action’ under NEPA.
Regarding Agreed Operating Procedures and site-specific projects, NEPA analysis is mandated for “new agency procedures” and significant policy shifts. The adoption of Agreed Operating Procedures requires the Forest Service to comply with NEPA. Similarly, specific project approvals also necessitate NEPA analysis for future logging projects.
The Forest Service’s determination of “no effect” on water howellia, bull trout, and bull trout critical habitat is deemed arbitrary and capricious, as the agency must consult under Section 7 of the ESA for any discretionary action that “may affect” listed species or critical habitats. This consultation is required even if actions are later found to be “not likely” to impact these species, as the “may affect” threshold is minimal, encompassing any potential effect.
The Forest Service concluded that the Project has an "indirect effect" on water howellia but mitigated this through a buffer zone, resulting in a determination of "no effect." This decision, however, overlooks the minimal threshold for "may affect," necessitating some consultation under the Endangered Species Act (ESA) as established in Karuk Tribe, which emphasizes that mitigation measures do not negate potential effects. Regarding bull trout, the Forest Service acknowledged some sedimentation will occur but asserted no impact on bull trout in the Glacier Creek watershed or Lindbergh Lake, while also stating there would be no downstream cumulative effects. Nonetheless, the Environmental Assessment (EA) indicated "trivial impacts" on bull trout habitat, triggering ESA consultation due to the low "may affect" threshold as outlined in Native Ecosystems Council v. Krueger.
The Forest Service also failed to comply with ESA regulations concerning the wolverine, which was proposed for listing in February 2013 and is known to inhabit the Project area. Although a Biological Assessment was not conducted since the wolverine was not proposed for listing at the time of the initial assessment in September 2012, the Forest Service performed a Biological Evaluation due to its designation as a "sensitive species." The evaluation concluded that the Project may impact individual wolverines but would not jeopardize the species' viability. Subsequently, an analysis in February 2013 confirmed the Project would not jeopardize the wolverine population. Plaintiffs did not challenge the adequacy of these documents as a biological assessment, which falls within the Forest Service's discretion in conducting such analyses.
The Forest Service has fulfilled the requirement for a biological assessment regarding the wolverine. However, if the assessment indicates that a project “may affect” a listed species, it necessitates consultation under Section 7 of the Endangered Species Act (ESA). Formal consultation is not needed if the Forest Service determines that the species is “not likely to be adversely affected” and receives written concurrence from the Fish and Wildlife Service, which is absent in this case. Therefore, the procedural requirements of the ESA have not been satisfied.
Under the National Forest Management Act (NFMA), forest planning occurs at both the forest and project levels. The Forest Service must adhere to its approved Land and Resources Management Plan when evaluating site-specific actions. The plaintiffs challenge the Project’s compliance with this plan, particularly concerning Amendment 19 (which protects grizzly bears) and Amendment 21 (which addresses old growth forests).
Plaintiffs argue that strict access standards from Amendment 19 apply to certain subunits that became predominantly National Forest System lands after a land acquisition, claiming that failure to meet these standards leads to unpermitted take of grizzly bears. The defendants contend that the plaintiffs' take argument is barred due to a lack of proper ESA notice and assert that the claims should fail. The court finds that the plaintiffs correctly identified the applicable access standard and provided adequate notice, but concludes that the agencies did not violate Section 9 of the ESA. The court will determine if the agencies’ Section 7 conclusion is arbitrary and capricious only after a remand for consideration of the correct access standards.
Amendment 19 establishes enforceable access standards to protect grizzly bears, mandating no increase in motorized access density and maintaining security core areas. The access objectives differentiate between predominantly National Forest System lands, which have specific numerical limits on road density and security core area requirements, and other lands governed by broader objectives. The dispute centers on whether these numerical access objectives apply to specific subunits, namely the Glacier Loon and Buck Holland subunits, following a land donation by The Nature Conservancy to the Forest Service.
The Forest Service's ownership in two subunits rose above 75% after a transfer, leading plaintiffs to assert that Amendment 19 applies to these subunits. Defendants counter that due to The Nature Conservancy's reserved rights over merchantable trees until December 31, 2018, the Forest Service lacks regulatory authority over harvests and road use, only adhering to general requirements on road density and security core area. The Forest Service's interpretation, which excludes lands acquired from The Nature Conservancy from the National Forest System lands calculation, contradicts Amendment 19’s provisions. Plaintiffs contend that these subunits do not comply with Amendment 19, but the amendment allows a 5-10 year compliance period.
Regarding the Endangered Species Act (ESA), citizens can file lawsuits to enforce its provisions only after giving the Secretary written notice of a violation at least 60 days in advance, a jurisdictional requirement that cannot be waived. Plaintiffs provided adequate notice through two letters indicating intent to sue under the ESA. The first letter, dated March 19, 2013, raised concerns about the arbitrary nature of the “may affect, not likely to adversely affect” finding related to grizzly bears, while the second letter, dated June 20, 2013, specifically addressed Amendment 19 and urged the agencies to reinitiate consultation and obtain an incidental take permit to comply with ESA requirements.
Plaintiffs challenged agency conclusions regarding the grizzly bear under Sections 7 and 9 of the Endangered Species Act (ESA), arguing that the agencies' determination that a project would not likely adversely affect the species was arbitrary due to unpermitted takes violating Section 9. The court found that all agency actions must comply with an existing incidental take statement to ensure adherence to Section 9, and that the alleged adverse effects by plaintiffs had already been analyzed in the context of the Swan Valley Grizzly Bear Conservation Agreement and Amendment 19. Plaintiffs claimed that certain subunits did not meet Amendment 19’s numerical objectives, leading to unpermitted takes. However, the incidental take statement acknowledged these subunits and provided an extended compliance schedule, allowing for certain levels of take as long as the project did not result in increased road density or decreased core habitat. The Forest Service determined it would not cause such increases or decreases, indicating no Section 9 violation occurred. Consequently, without a Section 9 violation, plaintiffs lacked alternative grounds to challenge the agencies' Section 7 determination. However, the court noted that reliance on incorrect access objectives could affect the conclusion that the project would not adversely affect the grizzly bear. Under Section 7, the Forest Service is required to ensure that actions do not jeopardize endangered or threatened species or critical habitat, necessitating a biological assessment to evaluate potential adverse effects.
If the Forest Service concludes that a proposed action "may affect but is not likely to adversely affect" a listed species or critical habitat, it is required to conduct informal consultation with the Fish and Wildlife Service (FWS). Should the FWS agree with the Forest Service's assessment, further consultation is unnecessary. In this case, the Forest Service conducted a biological assessment regarding the grizzly bear, citing multiple reasons for believing adverse effects would be minimal. These reasons include:
1. Project activities would only result in temporary displacement and minor reductions in hiding cover and forage.
2. The Swan Valley Grizzly Bear Conservation Agreement's management strategy would mitigate displacement and disturbance.
3. Inactive subunit guidelines permit a 30-day salvage period during summer and the bear’s denning time.
4. Spring timing restrictions would help avoid displacement.
5. There would be no increase in open road or total road density.
6. No loss of habitat security or rise in motorized access is anticipated.
7. Decommissioning of some existing roads and reclamation of temporary roads post-use are expected.
8. No effects on potential or known grizzly bear denning habitat are anticipated.
The FWS concurred with this assessment. The court noted uncertainty regarding whether its ruling on Amendment 19's quantitative requirements affects these findings and directed agencies to evaluate this on remand to determine if the Forest Service’s conclusions are arbitrary and capricious.
Amendment 21 aims to preserve and restore old growth habitat on the Flathead National Forest for the long-term viability of wildlife species dependent on such habitats. Although the Project does not involve cutting old growth trees, plaintiffs argue it violates the Forest Plan by failing to designate areas to meet viability requirements. The court faces two questions: whether the viability percentage in the Forest Plan is mandatory and, if not, the extent of the Forest Service's obligation to ensure old growth species viability. The Forest Plan encourages maintaining and increasing old growth forests to a level within 75% of historical norms, but this is considered a goal rather than a mandatory rule. Plaintiffs contest the Forest Service's viability assessment, arguing any level below 75% is inadequate for ensuring the viability of old growth species.
The Project is designed to maintain an acceptable habitat level, adhering to a 75 percent range around the median of historical variability. Defendants assert compliance with Amendment 21's old growth standards, which mandate actions that preserve or restore old growth and mitigate risks to it. They argue that the Project does not propose treatments in existing old growth stands, which will continue to provide habitat, and that harvest treatments will promote the growth of fire-resistant and longer-lived tree species. The viability of species is contingent on reliable assessments of necessary habitat quality and quantity, as emphasized by case law indicating potential violations of the National Forest Management Act (NFMA) if the Forest Service fails to adequately evaluate suitable habitats.
The Environmental Assessment (EA) thoroughly addresses the Project's impact on species associated with old growth, discussing the fisher's habitat requirements, including canopy cover and snag density, and acknowledging the complexities of monitoring this species. It notes that adequate old growth and riparian habitats will remain post-project. For the marten, the EA indicates a requirement of 250-500 acres of old growth, with average patch sizes in the area being 77 acres. The goshawk's habitat needs are also considered, with only 92 acres of post-fledgling habitat affected. Additionally, the Forest Service assessed the needs of the lynx, a threatened species under the Endangered Species Act (ESA), confirming that the Project area encompasses six Lynx Analysis Units (LAUs) and acknowledging potential adverse effects on designated critical lynx habitat, leading to formal consultation with the Fish and Wildlife Service under Section 7 of the ESA. Overall, the Forest Service has adequately evaluated habitat quality and quantity for old growth species, complying with the Forest Plan and NFMA.
The Fish and Wildlife Service determined that the Project would not adversely modify or destroy lynx critical habitat. Plaintiffs seek to enjoin the Project, arguing that re-consultation on the Lynx Direction is necessary, and that the Forest Service inadequately discussed recovery and did not prepare a site-specific biological opinion. However, the agency is not required to reinitiate consultation. Plaintiffs reference cases indicating that compliance with the Lynx Direction is insufficient to prove no jeopardy to lynx or its habitat. Nevertheless, the agencies assert they based their conclusions on the primary constituent elements (PCEs) of lynx critical habitat rather than the Lynx Direction. The Forest Service provided a detailed analysis indicating that while some forage habitat may decrease, the impacts on denning sites and connectivity would be insignificant. The analysis was deemed sufficient and independent of the Lynx Direction, upholding the agencies’ conclusions and negating the need for re-consultation. Additionally, the Biological Opinion was found to adequately address the Project's impacts on lynx recovery, fulfilling the necessary jeopardy analysis requirements.
The Ninth Circuit has established that survival and recovery of species are often analyzed together, making it challenging to distinguish between them. In the context of a biological opinion regarding the Canada lynx, it was noted that recovery does not need to be explicitly addressed in a separate section, but agencies must not ignore recovery needs while focusing solely on survival. The biological opinion referenced recovery in terms of habitat conservation for snowshoe hares, which are essential for lynx sustenance. The opinion claimed that specific habitat conditions would support lynx populations and promote recovery, despite not explicitly using the term “recovery.”
The opinion included discussions on habitat regeneration to ensure long-term snowshoe hare habitat, addressing specific concerns regarding physical and biological features necessary for lynx conservation. Although the term "recovery" was not used, the focus on species conservation aligns with the statutory definition of conservation under the ESA. The agency is not required to prepare a site-specific biological opinion if the action's effects on listed species or critical habitat fall within previously analyzed ranges, as indicated by the Fish and Wildlife Service's findings that the proposed action's impacts on Canada lynx were consistent with earlier analyses. The defendants argue that programmatic biological opinions adequately meet consultation requirements for actions affecting species over a broader scope, thus complying with regulatory standards.
The Fish and Wildlife Service determined that no second-tier biological opinion was necessary for the project, as the effects on lynx were sufficiently analyzed in the first-tier biological opinion. Key points include:
1. The project aligns with the scope of the first-tier biological opinion.
2. The anticipated effects of the project are consistent with those previously analyzed, particularly regarding fuels reduction treatments that may degrade snowshoe hare habitat.
3. The project complies with the reasonable and prudent measures outlined in the first-tier biological opinion.
The Ninth Circuit’s ruling in Gifford supports that an agency may partially rely on a programmatic biological opinion as long as it conducts independent analysis of site-specific data. The Forest Service provided an amended biological assessment focused on lynx and its habitat, ensuring that the potential impacts on lynx and critical habitat were adequately considered.
The Fish and Wildlife Service's concurrence letter indicated that approximately 380 acres of lynx habitat would be treated under the project, consistent with the anticipated total of 103,800 acres for the Forest. Since 2007, 4,081 acres of lynx habitat have been treated, which remains within the anticipated limits.
Plaintiffs failed to demonstrate flaws in the agencies' analysis or that an important aspect was overlooked, as supported by relevant case law affirming compliance with consultation requirements under the ESA and NEPA.
A comprehensive programmatic impact statement typically eliminates the need for a subsequent site-specific or project-specific impact statement unless new significant environmental impacts are identified. The Forest Service's decision not to prepare an Environmental Impact Statement (EIS) was deemed neither arbitrary nor capricious. Under the National Environmental Policy Act (NEPA), federal agencies are required to prepare a detailed EIS for major federal actions that significantly affect the quality of the human environment. An agency may first conduct an Environmental Assessment (EA) to determine if the proposed action's environmental impact is significant enough to necessitate an EIS. If the agency finds no significant impact, it must provide a convincing rationale for this conclusion. Plaintiffs challenging the Forest Service's decision do not need to prove that significant effects will occur; they must only raise substantial questions regarding potential significant impacts, which are assessed based on two factors: context and intensity. Context pertains to the setting of the proposed action, while intensity relates to the severity of the impact. Agencies may evaluate up to ten factors to determine significance, including proximity to ecologically sensitive areas, public controversy, cumulative impacts, uncertainty of risks, effects on endangered species, and potential violations of environmental laws. The Ninth Circuit has established that the presence of any one of these factors may necessitate an EIS. An agency's decision against preparing an EIS is subject to an arbitrary and capricious review standard, requiring the court to ensure that the agency has thoroughly examined the environmental consequences and made a reasoned evaluation based on relevant factors. The Ninth Circuit has consistently ruled that overlooking critical factors essential for an informed decision can invalidate the agency's conclusion.
The court in Wild Sheep v. U.S. Dept. of Agr. ruled that the agency's refusal to prepare an Environmental Impact Statement (EIS) was unreasonable due to inadequate consideration of projected traffic impacts on wild sheep. Conversely, in Greenpeace Action, the decision not to prepare an EIS was upheld as it took into account the effects of pollock depletions on the Steller sea lion. In the present case, Plaintiffs argue that the Forest Service improperly avoided preparing an EIS for a Project that would negatively impact lynx and critical lynx habitat, affect ecologically vital wetlands for the ESA-listed water howellia, and result in significant cumulative effects. Defendants counter that the Forest Service's finding of no significant impact was justified based on expert scientific input and a thorough evaluation of cumulative effects.
The Forest Service's Amended Biological Assessment concluded a "may affect—likely to adversely affect" for Canada lynx, noting a projected reduction of snowshoe hare habitat within designated lynx areas by 380 acres. Despite this, the Forest Service determined that the impacts were not significant under NEPA due to the short-term nature of disturbances and mitigation measures to minimize adverse effects on grizzly bears. Similar conclusions were drawn for lynx critical habitat, deemed not significant because of the small scale and low severity of impacts.
Although these findings might suggest a need for an EIS, the Ninth Circuit has clarified that NEPA does not obligate an EIS merely upon disclosure of adverse wildlife impacts. The Forest Service adequately assessed the potential effects on lynx and their habitat, with both the Amended Biological Assessment and the Environmental Assessment (EA) indicating no significant large-scale negative cumulative effects, as the Project aligns with the Lynx Direction standards and preserves extensive roadless and wilderness areas. The decrease in lynx forage within critical habitat was quantified as approximately 0.009% of existing lynx forage across the project area.
The Assessment indicates that approximately 87 acres of denning habitat affected by the Project represent about 0.003% of the available denning habitat across six project Landscape Analysis Units (LAUs) and less than 0.000003% of Critical Habitat in Unit 3. Regarding water howellia, Plaintiffs claim that the Project impacts critical wetlands for this species. However, the record does not substantiate that these wetlands are ecologically critical. The Forest Service proposed mitigation measures, including a 300-foot buffer, to protect water howellia from disturbances, and considered existing road locations and best management practices to minimize sedimentation and other negative impacts. While local officials raised concerns, the controversy surrounding the Environmental Assessment (EA) did not reach a level that undermined its conclusions, as Plaintiffs failed to identify any overlooked critical factors.
Additionally, Plaintiffs challenged the cumulative effects analysis in the EA, arguing it inadequately addressed multiple logging projects in the area, specifically mentioning five projects. The EA did reference Fredwood and considered Two Bear and Last Gap in a Supplemental Information Report, while the Forest Service was allowed to evaluate the cumulative effects of previously implemented projects. The EA includes discussions of past timber projects and their cumulative effects on certain species within defined geographic areas. Lastly, Plaintiffs voluntarily withdrew their claim regarding insufficient analysis of harm to elk.
Plaintiffs have withdrawn their claim concerning the elk analysis under the Project, leading to a summary judgment favoring Defendants on that issue. Plaintiffs sought to supplement the administrative record with three items: the complete Agreed Operating Procedures and Fiber Supply Agreement, the Forest Service’s official Wolverine Guidance, and two peer-reviewed articles on fuel reduction. However, the court found that consideration of these materials was unnecessary for the summary judgment motions. Judicial review typically relies on the existing administrative record, with limited exceptions for supplementation, which the Plaintiffs failed to substantiate concerning the Wolverine Guidance and peer-reviewed articles, as the Forest Service did not rely on them in its decision-making.
The Fiber Supply Agreement, being between The Nature Conservancy and Plum Creek, was also deemed irrelevant to the Forest Service’s decision. Consequently, the court granted summary judgment in part for Plaintiffs on specific claims: the requirement for NEPA and ESA analysis for the Agreed Operating Procedures and logging projects, the arbitrary nature of the “no effect” determination for bull trout and water howellia, the violation of the ESA regarding the wolverine, and the application of numerical objectives under Amendment 19 to National Forest System lands with reserved logging rights. Summary judgment was granted in favor of Defendants on all other claims.
The case is remanded to the agencies to conduct necessary analyses and follow required procedures under the ESA for water howellia, bull trout, and wolverine, and to reassess the Section 7 analysis concerning the grizzly bear. Defendants are enjoined from implementing the Glacier Project and from proceeding under the Agreed Operating Procedures until the required analyses are completed.
Plaintiffs' motion to supplement the record has been denied, and the Clerk of Court is instructed to enter judgment and close the case. Water howellia is recognized as a threatened species under the Endangered Species Act (ESA), while bull trout has been similarly classified since 1999, with designated critical habitat established in 2010. A Biological Assessment indicated that the proposed project would not jeopardize the wolverine, although the U.S. Fish and Wildlife Service withdrew its proposal to list the wolverine as a threatened species in 2014, potentially affecting future considerations. For grizzly bears, the objectives for areas with over 75% National Forest System land include limiting high-density motorized access to specific percentages within five and ten years, and ensuring security core areas meet specified thresholds. Defendants argued that certain subunits did not qualify for these objectives based on their composition, but this interpretation was deemed unreasonable as the amendment's percentage-based standard implies applicability to changing subunit compositions. The definition of "old growth" is provided in Amendment 21, while the Forest Plan does not specify a time frame for achieving its goals. Additionally, the standard for reviewing agency determinations not to prepare an Environmental Impact Statement (EIS) has shifted from the "reasonableness" standard applied in previous cases.
