Alliance for the Wild Rockies v. Bradford

DANA L. CHRISTENSEN

Motions granted in part and denied in part.

Alice Vandenberg Jones, Attorney At Law, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, for Plaintiff. John P. Tustin, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER NUNC PRO TUNC

DANA L. CHRISTENSEN, Chief Judge.

Plaintiff challenges the Pilgrim Creek Timber Sale Project. Both parties move for summary judgment and for the reasons set forth below both motions are granted in part and denied in part.

Synopsis

The Pilgrim Creek Timber Sale Project (“the Project”) is located on the Cabinet Ranger District of the Kootenai National Forest in Sanders County, Montana near the Cabinet–Yaak Ecosystem Grizzly Bear Recovery Zone. The Project has several design elements, including: 536 acres of intermediate timber harvest, 898 acres of regeneration timber harvest, 4,564 acres of natural fuels reduction activities, or prescribed burning, 47 miles of road reconstruction, 1.1 miles of temporary road construction, and 4.7 miles of new, permanent road construction.

Plaintiff contends the Project will harm grizzly bears. Specifically, Plaintiff contends that the Project's authorization for construction of 4.7 miles of new, permanent roads is inconsistent with the Kootenai National Forest Plan and the 2011 Access Management Amendments Incidental Take Statement and the Project thus violates the National Forest Management Act (“NFMA”), the Endangered Species Act (ESA), and the National Environmental Protection Act (NEPA). Plaintiff also contends that the Forest Service violated NFMA and NEPA when it authorized the use of helicopters to conduct much of the Project's prescribed burning. Plaintiff seeks declaratory and injunctive relief.

The Court concludes that, as a general matter, properly barriered roads do not contribute toward a net permanent increase in linear miles of open roads under the Access Amendments, but that here, the new, permanent roads for the Project will not be barriered in the manner required by the Access Amendments. Accordingly, this matter is remanded to the Forest Service so that it can address this deficiency. The Court also concludes that the Forest Service's analysis of helicopter use for the Project is consistent with its duties under NFMA and NEPA.

The Forest Service may choose to gate these new roads in order to allow future motorized access, maintenance, and other administrative uses, but if it chooses this course, it must, pursuant to Standard II(B), make in-kind reductions in linear total road miles concurrently with, or prior to, the new road construction. If, on the other hand, the Forest Service does not wish to make in-kind reductions, it must “barrier” the new roads consistent with all of the requirements of Standard II(B)(2). Because the Project authorizes the Forest Service to “close” the new roads in a manner that is inconsistent with the Access Amendments Incidental Take Statement and the Forest Plan, the agencies' decision is not in accordance with NFMA, the ESA, and NEPA. Accordingly, the Court remands this issue to the Forest Service so that it can addresses this deficiency. The Forest Service must decide how it will proceed with respect to either appropriately closing the new roads following completion of Project activities or establishing in-kind reductions in total road miles in the Clark Fork BORZ.

C. Various other issues raised related to roads

Plaintiff contends that the agencies' failure to consistently disclose the number of existing miles of total road mileage in the Clark Fork BORZ constitutes a violation of NEPA. Plaintiff contends that the inconsistencies impeded informed decision making and show that the agencies failed to provide a full and fair analysis of the environmental effects of the new road construction.

It is undisputed that Plaintiff failed to raise any issue with respect to the inconsistencies regarding total road mileage during the administrative review process. Accordingly, Plaintiff waived the right to assert a NEPA violation on this basis. Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir.1991). Defendants are granted summary judgment as to this issue.

The Court also concludes that the Project does not violate the ESA due to the errors in the Biological Assessment, which the agencies caught and corrected, regarding the acreage of reduced habitat quality due to point source disturbances and road use. First, the record indicates that notwithstanding the erroneous numbers listed in certain tables, “the actual effects of the selected action were analyzed and discussed in the [draft] EIS and the effects and disturbance and total road density did not differ enough between alternatives to warrant a different determination.” FS 042969. While Plaintiff suggests this statement and the concurring statement by the Fish and Wildlife Service must be viewed with suspicion, the opposite is true. The Court defers to the agencies' technical expertise with respect to questions involving scientific matters. United States v. Alpine Land & Reservoir Co., 887 F.2d 207, 213 (9th Cir.1989). Furthermore, it is apparent from a full reading of the Biological Assessment and draft EIS that, just as the Forest Service stated in its errata, the actual effects were in fact analyzed notwithstanding the apparent typographical error in the Biological Assessment. The errors in the Biological Assessment that were caught before the final decision was made and which were then explained in an errata do not demonstrate that the agencies' determination that the Project is not likely to adversely affect grizzly bears is arbitrary and capricious in violation of the ESA. Defendants are entitled to summary judgment on this issue.

While the Court remands to the Forest Service the issue of the Project's road impacts for the reasons detailed in Part B above, the Court nevertheless provides here its decision with respect to errors in the Biological Assessment.

II. Helicopters

Plaintiff contends that the Forest Service's analysis of the effects of helicopter use for prescribed burning activities is flawed because it failed to apply best available science as required by NFMA regulations, 36 C.F.R. § 219.3, § 219.35(a). Plaintiff further contends that the Forest Service's analysis regarding helicopter use is incomplete and thus in violation of NEPA.

As noted above, the Project calls for prescribed burning for natural fuels reduction, with 3,754 acres of the prescribed burning to be conducted by helicopter ignition. These prescribed burning activities will be conducted in various predetermined locations scattered throughout the Project area of 29,987 acres over the course of approximately 10 years. The Forest Service determined that the helicopter usage may affect but is not likely to adversely affect the grizzly bear because (1) there will be few trips and no more than two activities per year (2) there will be no more than two days of activities per analysis area per bear year; (3) there will be no landings within the project area; (4) the duration of the each helicopter activity is short; and (5) there will be no lingering effects. The Forest Service explained that the prescribed burns “would vary from low to moderate severity, leaving a mosaic of burned and unburned areas.” AR 024252. The Forest Service recognized that “a grizzly bear in the area may be disturbed by burn activities” “for a brief period,” but that “it is expected that bears and other wildlife would return to these areas relatively quickly” to enjoy the resulting “flush of young, palatable vegetation.” Id.

A. NFMA claim

Plaintiff contends the Forest Service's analysis is contrary to the joint agency 2009 “Guide to Effect Analysis of Helicopter Use in Grizzly Bear Habitat” (“Guide”). The Guide states that “[i]f the duration of helicopter use is short and the effects are relaxed almost immediately ..., then low altitude helicopter operations are generally ‘not likely to adversely affect’ grizzly bears.” FWS 000373 (emphasis in original). The Guide specifies that “[h]elicopter use involving short duration (e.g. one day) and low frequency (e.g. several trips) may affect grizzly bears, but because the disturbance is relatively minor in intensity and does not persist for long periods (or through a season), the consequences should be insignificant.” Id. (emphasis in original). Helicopter operations that are generally unlikely to adversely affect grizzly bears include all of the following features: “(1) low altitude (less than 500 m); (2) with or without landings; (3) in proximity to grizzly bears or their habitat; (4) the effects are relaxed almost immediately; and (5) the duration is short (activity usually concludes within a 48–hour period).” FWS 000374. The Guide specifically lists “limited prescribed burning” as an activity which is generally not likely to adversely affect grizzly bears. Id.

By contrast, “extended prescribed burning” is listed in the Guide as an activity which is generally likely to adversely affect grizzly bears. Such operations are characterized by “low altitude helicopter use [that] is extended (occurs over a 48–hour period), and the effects are not relaxed (multiple trips, passes, or sweeps each day).” FWS 000374.

These general guidelines notwithstanding, the Guide recognizes that “[t]he effects of helicopter operations on grizzly bears will depend on a number of variables, plus considerations of any extenuating circumstances. It is inappropriate to believe there is a ‘cook book’ or ‘one size fits all’ answer.” FWS 000370.

Contrary to Plaintiff's assertion, the Final EIS demonstrates that the Forest Service based its determination on and applied the best available science as set forth in the Guide. The Forest Service's determination that the helicopter operations are not likely to adversely affect the grizzly bear are clearly based on the multiple variables and factors listed in the Guide. The determination is based specifically on the low frequency of trips per year, the low duration of activities per analysis area, the absence of landings in the project area, and the absence of lingering effects. The Final EIS demonstrates that the Forest Service also considered the location of the activity (i.e. the Clark Fork BORZ), the distribution of the activities throughout the Project area, the intensity of the disturbance, the effect of the operations on forage and bear habitat, the time of year of the operations, and potential cumulative impacts associated with the helicopter operations. Plaintiff thus fails to demonstrate that the Forest Service failed to apply best available science in violation of NFMA. Defendants are entitled to summary judgment on this claim.

B. NEPA claim

Plaintiff contends, in similar fashion, that the Forest Service failed to take a hard look at the impacts of helicopter use on grizzly bears. In particular, Plaintiff contends that the Forest Service failed to analyze helicopter use in terms of frequency, duration, and altitude.

The Final EIS specifically discusses (1) the number of trips per year, (2) the number of days per activity per analysis area per bear year; (3) the duration of these trips; and (4) the fact that there will be no landings. Plaintiff recognizes that the Final EIS discusses these factors, but contends that the analysis is too cursory to pass muster under NEPA.

The Court concludes that the EIS contains “a reasonably thorough discussion of the significant aspects of the probable environmental consequences” associated with helicopter use for prescribed burning activities. California v. Block, 690 F.2d 753, 761 (9th Cir.1982). Plaintiff contends that the analysis lacks discussion of the altitude of the helicopter usage. It is clear, however, that the Forest Service recognized that helicopter ignition for prescribed burning occurs at low elevations. Indeed, the fact seems so obvious as to not need mention. Notably, high altitude helicopter use has “no effect” on grizzly bears. FWS 000373.

More problematic, perhaps, is the Forest Service's limited analysis regarding duration of helicopter activities. The Guide states that helicopter activities of “short duration” “usually conclude[ ] within a 48–hour period,” FWS 000374, whereas the Forest Service concluded that the duration of the Project's helicopter activities is “short,” despite the fact that the Project authorizes helicopter activities lasting up to 48 hours, AR 024253. Though the Forest Service's analysis with respect to duration of helicopter activities is not extended, and falls within a gray area relative to the Guide, the Court concludes that this is not fatal to the Forest Service's ultimate determination and does not demonstrate a violation of NEPA. The Guide recognizes that “effects of helicopter operations on grizzly bears will depend on a number of variables,” and the EIS contains a discussion of numerous of these important variables associated with the Project's helicopter activities. FWS 000370. The Court therefore concludes that the Forest Service conducted an analysis adequate to pass muster under NEPA. Defendants are entitled to summary judgment as to this issue.

III. Plaintiff's motion to supplement

One day after the deadline for such a motion, Plaintiff moved the Court to supplement the administrative record with a document it refers to as “the full Kootenai National Forest Plan,” which is in fact an unapproved draft of a new Kootenai National Forest Plan which was released on September 23, 2013. (Doc. 12 at 2.) This document post-dates the Project decision and thus is properly excluded from the administrative record. Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 555, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Plaintiff asserts that the document is “relevant” to the Court's decision, but Plaintiff did not reference this document in any way in its summary judgment briefing. (Doc. 13 at 4.) Therefore, the Court did not rely on the document, and indeed it was never filed in the docket. For these reasons, Plaintiff's motion to supplement is denied.

IT IS ORDERED that the motions for summary judgment (Docs. 16, 21) are GRANTED IN PART and DENIED IN PART as detailed above. This matter is remanded to the Forest Service so that it may prepare a supplemental EIS that is consistent with this order and the law.

IT IS FURTHER ORDERED that the defendants are enjoined from implementing the Project while the proceedings required on remand are pending.

IT IS FURTHER ORDERED that Plaintiff's motion to supplement is DENIED.

IT IS FURTHER ORDERED that Plaintiff's motion for preliminary injunction is DENIED as moot.

The Court firmly believes that the amount of attorney's fees, if any, owed to Plaintiff in connection with this action is most appropriately resolved by the parties without the Court's intervention. An amicable and independent resolution of this issue will not only conserve scarce judicial resources, but will save the parties and their counsel the time and expense associated with formal proceedings before the Court. Accordingly,

IT IS FURTHER ORDERED that counsel for Plaintiff and Defendant shall meet within 15 days of the date of this order, either in person or telephonically, for the purpose of determining Plaintiff's attorney's fees, if any. The parties shall have until 30 days from the date of this order to negotiate and agree upon a fee amount. The parties shall file a joint notice by that date stating whether they have resolved the issue, or whether the Court must determine the appropriate award of fees and expenses. Should the parties notify the Court that they are unable to resolve this matter, the Court will issue a scheduling order for briefing that will supplant the standard schedule set forth in Rule 54(d)(2) of the Federal Rules of Civil Procedure.

IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment in favor of Plaintiff and Defendants and close this case. -------- Notes: