UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
NATIVE ECOSYSTEMS COUNCIL
& ALLIANCE FOR THE WILD
ROCKIES,
Plaintiffs,
v.
UNITED STATES FOREST
SERVICE, acting by and through
Ashton/Island Park District Ranger on
the Caribou-Targhee National Forest
ELIZABETH DAVEY, HARV
FORSGREN, REGIONAL
FORESTER for Region 4 of the
Unites States Forest Service,
UNITED STATES SECRETARY OF
THE INTERIOR KEN SALAZAR, &
UNITED STATES FISH &
WILDLIFE SERVICE, acting by and
through Acting Director Rowan
Gould,
Defendants.
Case No. 4:11-cv-00212-CWD
MEMORANDUM DECISION AND
ORDER
INTRODUCTION
In 2005, the United States Forest Service adopted a revised map delineating
analysis units for the Canada lynx within the Caribou-Targhee National Forest. The
Canada lynx is listed as a threatened species under the Endangered Species Act and the
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land within the boundaries of Lynx Analysis Units (“LAUs”) is subject to various
restrictions, including a prohibition on precommercial thinning of trees. The 2005 map
eliminated eight LAUs located within the Caribou-Targhee National Forest and removed
approximately 400,000 acres of land previously subject to the restrictions applicable to
LAUs.
In December of 2009, the Forest Supervisor for the Caribou-Targhee National
Forest authorized the Split Creek Precommercial Thinning Project (the “Split Creek
Project” or “Project”). The Project authorized the precommercial thinning of
approximately 7,000 acres of lodgepole pine located within the Island Park and Madison-
Pitchstone Plateaus Subsections of the Caribou-Targhee National Forest. The Forest
Service prepared an Environmental Assessment for the Project under the National
Environmental Policy Act (“NEPA”) and a Biological Assessment of the potential affects
of the Project on the Canada lynx and its habitat under the Endangered Species Act
(“ESA”).
In its review under NEPA, the Forest Service concluded that the Project “will not
have a significant effect on the quality of the human environment” and that the
preparation of a more detailed Environmental Impact Statement was not necessary.
(Administrative Record 12225.)1 In its review under the ESA, the Forest Service
1 The administrative records underlying the agencies’ decisions on appeal were
lodged with the Court on three compact discs. The records are numbered “FS #####” or
“FWS ###” depending upon whether the records were before the Forest Service or the
Fish and Wildlife Service. The Court will use the designation “AR” for all “FS”
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concluded that the Project “may affect, but is not likely to adversely affect” the Canada
lynx or its habitat. (AR 5691.) Both analyses rely heavily on the 2005 map and the fact
that the Project area is not within an LAU. Prior to its use as a justification for the
authorization of the Split Creek Project, the 2005 map had not been analyzed under
NEPA.
Based upon these findings, the Project commenced on July 8, 2010, and the Forest
Service thinned approximately 1,350 acres of lodgepole pine. Year two of the Project
commenced in August of 2011, and it was anticipated that approximately 2,400 acres of
lodgepole pine would be thinned. The Project is scheduled to continue each season until
the full 7,000 acres are thinned.
On May 11, 2011, Native Ecosystems Council and the Alliance for the Wild
Rockies (“Plaintiffs”) – non-profit organizations dedicated to the conservation and
preservation of natural resources and biodiversity in the Northern Rockies – filed an
action against the United States Forest Service, the United States Fish and Wildlife
Service (“FWS”), Secretary of the Interior Ken Salazar, and various other federal
employees associated with these agencies (collectively “Defendants”).2 (Dkt. 1.)
numbered records and “AR FWS” for all records originally designated “FWS.”
2 Plaintiffs also name Elizabeth Davey (the Ashton/Island Park District Ranger for
the Caribou-Targhee National Forest), Harv Forsgren (the Regional Forester for Region 4
of the United States Forest Service), and Dan Ashe (Director of the United States Fish
and Wildlife Service).
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Plaintiffs challenge two actions taken by Defendants. First, Plaintiffs challenge the
Forest Service’s authorization of the Split Creek Project. Plaintiffs contend that the
Project is detrimental to the habitat of the Canada lynx, and by extension to the lynx
itself. Second, Plaintiffs challenge Defendants’ adoption of the 2005 LAU map, arguing
that the map should have been subjected to NEPA review and that the failure to do so
undermines the agency decisions related to authorization of the Project, which rely on the
map. Plaintiffs argue that the approval of the 2005 map and the authorization of the
Project violated NEPA, 42 U.S.C. § 4331 et seq., the ESA, 16 U.S.C. § 1531 et seq., and
the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq.
Before the Court are the parties’ cross-motions for summary judgment. (Pl.s’ Mot.
for Summ. J., Dkt. 45; Def.s’ Cross-Mot. for Summ. J., Dkt. 46.) A hearing on the parties’
motions was held on February 28, 2012. Having fully considered the parties’ briefing and
arguments, and having reviewed the voluminous administrative record and the applicable
legal authorities, the Court finds that the Forest Service’s failure to prepare an
Environmental Impact Statement for a decision that ultimately opened approximately
400,000 acres of previously protected land to precommercial thinning violated NEPA.
Moreover, like a house of cards built on an unsound foundation, because the 2005 map
was not analyzed under NEPA, the agency’s analysis under the ESA – which is based
upon the validity of the 2005 map – cannot withstand judicial review. Based on the
above, and as more fully explained below, Plaintiffs’ motion for summary judgment will
be granted in part, the Split Creek Project will be enjoined, and the case will be remanded
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to the agencies for further proceedings consistent with this Memorandum Decision and
Order.
FACTUAL AND PROCEDURAL BACKGROUND
1. Designation of the Canada Lynx as a Threatened Species and Mapping of
Lynx Habitat
On March 24, 2000, the FWS added the Canada lynx (Lynx canadensis) to the list
of threatened species under the Endangered Species Act. 65 Fed. Reg. 16052-1, 2000 WL
299328. Following nearly a decade of analysis, the agency determined that the lynx
population of the continental United States was threatened by “the lack of guidance for
conservation of lynx and snowshoe hare habitat in the National Forest Land and Resource
Plans.” (AR 1524.) The FWS concluded that “it is imperative that lynx habitat and habitat
for lynx prey [primarily snowshoe hare] be maintained and conserved on Federal lands.”
65 Fed. Reg. 16051-01.
In 2000, an interagency lynx biology team, which consisted of biologists from the
Forest Service, the FWS, the Bureau of Land Management, and the National Park
Service, developed the Canada Lynx Conservation and Assessment and Strategy
(“LCAS”) as an interim and guiding conservation strategy for lynx on federal lands. (AR
5307-5309.) The LCAS required the Forest Service and the FWS to delineate LAUs
“upon which direct, indirect, and cumulative effects” from site-specific projects could be
analyzed. (AR 4695-96.) “An LAU is an area of at least the size used by an individual
lynx, from about 25 to 50 square miles[,]” (AR 1591), and must contain “at least 10
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square miles of primary [lynx habitat to support reproduction and survival].” (AR 4672-
73.) According to the LCAS, LAUs were “not intended to depict actual lynx home
ranges, but are intended to provide analysis units of the appropriate scale with which to
begin the analysis of potential direct and indirect effects of projects or activities on
individual lynx, and to monitor habitat changes.”
In 2001, the Forest Service and the FWS delineated LAUs for the Island Park and
Centennial Mountain areas of the Caribou-Targhee National Forest (“C-TNF”).3 (AR
4820.) The parties refer to this as the 2001 map. The 2001 map depicts several LAUs
within the C-TNF, including what would become the Split Creek Precommercial
Thinning Project area. Of the total 1,134,779 acres within the boundaries of an LAU in
the forest, 645,049 acres were considered primary suitable habitat, 126,795 were
secondary suitable habitat, 98,554 were primary unsuitable habitat and 8,565 were
considered secondary unsuitable habitat. (AR 4821.) The 2001 map also identifies LAUs
within the project area containing “primary” lynx habitat. (Id.)
During this same time period, the Forest Service and the FWS entered into a Lynx
Conservation Agreement in the year 2000. The agreement served as a framework for
lynx conservation within mapped lynx habitat on national forests and was revised in 2005
and again in 2006 to implement the standards and guidelines in the LCAS until formal
management could be implemented.
3 The Project is located in the Island Park area of the C-TNF.
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In 2005, as contemplated by the LCAS, the agencies revised the LAU designations
in the Island Park and Centennial Mountain areas. (AR 3098, 5675.) According to the
FWS, “[a]s new information became available (including information on habitat quality,
snowshoe hare studies, and habitat mapping), it became necessary to refine the [original]
LAU map,” and in 2005, the Forest Service developed a revised LAU map for the Island
Park and Centennial Mountain area. (AR 5697.) In the revision process, the agencies used
a habitat model that predicted the probability of moist subalpine fir habitat in the Island
Park and Centennial Mountain areas. (AR 5623-28.) The habitat model used a
topographic methodology (evaluating elevation, slope, soil, etc.) that allowed the agencies
to more accurately separate the moist subalpine fir habitat (which the agencies previously
found to be primary lynx habitat) from the dry subalpine fir habitat types (which the
agencies previously found were not associated with primary lynx habitat). (AR 5623-27.)
When this habitat model was applied to the Island Park and Centennial Mountain
areas, the agencies found that the occurrence of moist subalpine fir habitat in the 2001
LAU map had been significantly overestimated. (AR 5623) (“estimated occurrence of
[moist] subalpine fir habitat type [in the Island Park area] was considerably (>30%) less
than previously mapped.”). Based on the results of the habitat model, the agencies revised
the locations of moist subalpine fir habitat types in the areas and determined that many of
the 2001 LAUs, especially in the Island Park area, contained less than the required 10
square miles of moist subalpine fir habitat. Ultimately, the 2001 map was revised, and the
revised map – the 2005 map – proposed to drop eight LAUs within the Island Park
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Subsection and Madison-Pitchstone Plateaus Subsection of the CTNF. (AR 4821.) The
2005 map removed 390,900 acres from the 2001 map. (AR 5608.)
In 2007, the Forest Service adopted the Northern Rockies Lynx Management
Direction (the “Lynx Management Direction”), which set forth goals, standards, and
guidelines for all LAUs. (AR 1520.) The Lynx Management Direction superceded the
interim Conservation Agreement between the Forest Service and the FWS, including the
2005 and 2006 revisions. It also amended the Forest Plans for the Caribou-Targhee
National Forest and incorporated lynx conservation guidelines into those plans. (AR
1524.)
The Lynx Management Direction sets forth several objectives, standards, and
guidelines applicable “to all management projects in lynx habitat in lynx analysis units
(LAUs) in occupied habitat and in linkage areas.”4 (AR 1576.) Vegetation Standard S1
prohibits vegetation treatment projects “[i]f more than 30 percent of the lynx habitat in an
LAU is currently in a stand initiation structural stage that does not yet provide winter
snowshoe hare habitat.” (AR 1577.) Vegetation Standard S2 prohibits timber projects on
“more than 15 percent of lynx habitat on [Forest Service] lands within an LAU in a ten-
4 The Lynx Management Direction provides a definition of lynx habitat and
identified the vegetation characteristics that contribute to lynx habitat. It retained the
definition of “occupied habitat” implemented by the 2006 revisions to the Conservation
Agreement and included a map, based on the 2006 revisions, that displayed occupied and
unoccupied lynx habitat located within the Northern Rockies Lynx Planning Area. The
Split Creek Pre-Commercial Thinning Project is located within an area designated
“occupied.”
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year period.” (Id.) Vegetation Standard S5 specifically addresses pre-commercial thinning
projects and prohibits such activity in areas within LAUs except in limited enumerated
circumstances.5 And Vegetation Standard S6 prohibits vegetation management projects
that reduce snowshoe hare habitat in multi-story mature or late successional forests except
in limited enumerated circumstances. (AR 1579.)
The Forest Service has not assessed whether the Split Creek Precommercial
Thinning Project complies with the above standards because, based on the 2005 map,
there are no LAUs within the Project area and the standards apply to lynx and snowshoe
5 Standard VEG S5 provides:
Precommercial thinning projects that reduce snowshoe hare habitat may occur
from the stand initiation structural stage until the stands no longer provide winter
snowshoe hare habitat only:
1. Within 200 feet of administrative sites, dwellings, or outbuildings; or
2. For research studies or genetic tree tests evaluating enetically improved
reforestation stock; or
3. Based on new information that is peer reviewed and accepted by the
regional level of the Forest Service, and state level of FWS, where a written
determination states:
a. that a project is not likely to adversely affect lynx; or
b. that a project is likely to have short term adverse effects on lynx or its
habitat, but would result in long-term benefits to lynx and its habitat; or
4. For conifer removal in aspen, or daylight thinning around individual aspen
trees, where aspen is in decline; or
5. For daylight thinning of planted rust-resistant white pine where 80% of the
winter snowshoe hare habitat is retained; or
6. To restore whitebark pine.
Exceptions 2 through 6 shall only be utilized in LAUs where Standard VEG S1 is met.
(AR 1578-79) (italics in original).
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hare habitat only within LAUs.
2. Events Leading to Approval of the Split Creek Project
The Split Creek Project was approved originally by the Forest Service in
December of 2007 and relied on the 2005 map, which had not yet been approved by the
Regional Forester. (AR 3028.) After receiving objections to the use of a map that had not
been exposed to public comment, the Forest Service withdrew the project in August of
2008 to provide notice and comment on both the 2005 map and the Project. The Project
was “withdrawn on July 28, 2008 to provide an opportunity for public notice and
comment on both the pre-commercial thinning proposal and on the Caribou-Targhee
National Forest (C-TNF) updated Lynx Analysis Unit mapping for the Canada Lynx.”
(AR 11552.)
In February of 2009, Forest Service staff proposed the approval and adoption of
the 2005 map to the Regional Forester. (AR 5604.) The 2005 LAU map made significant
changes to the 2001 LAU map, including the removal of several LAUs. These changes
were made pursuant to “Standard LAU S1" set forth in the Lynx Management Direction,
which provides that “[c]hanges in LAU boundaries shall be based on site-specific habitat
information and reviewed by the Forest Service Regional Office.” (AR 1576.) Neither an
Environmental Assessment nor an Environmental Impact Statement was completed for
the 2005 map.
According to the Forest Service, the changes to the 2001 LAU map were made
based on the following information: LAU mapping direction contained in the LCAS; the
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history of lynx occurrence information contained in the Ecology and Conservation of
Lynx in the United States; recent lynx occurrence information gathered from the national
lynx detection surveys (commonly referred to as lynx hair-snare grids), reported
observations, and one radio-collared lynx; two snowshoe hare studies completed on the
Caribou-Targhee National Forest; information and recommendations from the July 2003
Lynx Interagency Coordination Meeting held in Island Park Idaho; new vegetation
analysis done on BLM and National Forest lands in the Centennial Mountains and Plateau
area; and a second evaluation of vegetation in the Caribou Range Overthrust Mountain
Ecological Subsection. (AR 83-84.)
In response to the Caribou-Targhee National Forest’s proposed adoption of the
2005 LAU map, the Regional Forester made the following comments:
As per your request, the Region 4 Wildlife staff reviewed
your 2005 revision of the Caribou-Targhee National Forest
Lynx Analysis Unit (LAU) Map. The LAU map and the
process used to develop it are consistent with direction
contained in the Northern Rockies Lynx Management
Direction (NRLMD) and concepts outlined in the Lynx
Conservation Assessment and Strategy. It is our expectation
that the Forest will use this new map to implement
requirements of the NRLMD and will serve as the reference
for mapped Lynx habitat on the Forest. We recognize that the
2005 LAU map represents more recent analysis of lynx
habitat than that contained in Figure 1-1 of the NRLMD.
Also, we recognize that Figure 1-1 in the NRLMD was never
intended to accurately depict mapped lynx habitat at the forest
scale.
(AR 5684-85.) In April of 2009, the proposal was approved by Regional Forester Harv
Forsgren. (AR 5603.) In December of 2009, the CTNF Forest Supervisor authorized the
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Split Creek Project. (AR 12218.)
3. The Split Creek Project
The Project authorized the precommercial thinning of approximately 7,000 acres
of lodgepole pine (with a minor amount of aspen, Douglas-fir and subalpine fir) located
within the Island Park and Madison-Pitchstone Plateaus Subsections of the Caribou-
Targhee National Forest. (AR 5663.) “Approximately 2,000 - 4,000 acres are proposed to
be thinned each year starting in 2010, depending on funding.” (Id.) “The areas identified
to be thinned are past harvest units primarily composed of stands of lodgepole pine with
500 - 13,000 trees per acre [and] [t]he lodgepole would be thinned to a residual density of
approximately 360 trees per acre.” (Id.)
The FWS summarized the purpose of the Project as follows:
The purpose of the Split Creek Project is to improve overall
stand health. The high tree density in the Split Creek Project
area results in less vigorous growth, which can eventually
lead to a stagnant forest. The high level of competition
between the trees in the stand causes the trees to shed their
lower branches (self pruning), the tree crowns become very
thin, and the tree diameters remain small. Thinning of the
stands would result in retention of lower live limbs, which
provides hiding cover for many wildlife species. Thinning
would also result in less competition, which results in better
crown development and faster and bigger diameter growth,
providing more suitable habitat for cavity nesting birds, and
larger limbs for forest raptors to build nests. Additionally,
large tree crowns provide more cone production for natural
regeneration and food for species that utilize conifer seed.
(AR 5696-97.)
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Logistically, contract crews using chainsaws have been thinning the trees in the
Project area. There is to be no new road construction or reconstruction. Trees that are
felled are to be left on site, and, therefore, there are no ground disturbing activities due to
machine piling or skidding. (AR 5696.) Year one of the Project commenced on July 8,
2010, and the Forest Service thinned approximately 1,350 acres of lodgepole pine. Year
two of the Project commenced in August of 2011, and it was anticipated that
approximately 2,400 acres of lodgepole pine would be thinned.
4. Biological Assessment under the ESA
In evaluating whether to approve the Project, pursuant to Section 7 of the ESA, the
Forest Service determined that the Project “may affect” the lynx, and therefore consulted
with the FWS before authorizing the Project. As part of the consultation, the Forest
Service prepared a Biological Assessment for the lynx. (AR 5660.) The Biological
Assessment was issued on July 22, 2009, and addressed the potential effects of the Project
on the lynx and its habitat, including snowshoe hare habitat. In evaluating the potential
adverse effects of the Project on the lynx, the Forest Service noted the following
observations in the Biological Assessment: for the time period between 1874 through
2005, only one radio-collared male lynx crossed the Project area during the summers of
2000 and 2001 (AR 5669); no lynx tracks have been documented on any established
winter snow tracking routes from 2005 to the present (id.); there are no resident
reproducing lynx in the C-TNF (AR 5671); since 2005, winter snow tracking routes,
including one in the Project area have demonstrated no verified or possible lynx tracks
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(AR 5669); and during the winter of 2009, the Forest Service positioned 40 winter snow
tracking routes within the Project area and did not observe any lynx or lynx tracks on any
route. (AR 5671.) Based on these observations, the Forest Service acknowledged the
possibility of an individual lynx moving through the Project area, but found that, in the
event of this unlikely scenario, the lynx would be displaced only (required to move
around the area) and no lynx mortality would result. (Id.)
The Forest Service also considered the potential effects the Project would have on
lynx habitat, as distinct from the potential effects on the lynx itself. The Biological
Assessment notes that the Project area is not located within habitat designated “critical”
by the FWS under the ESA. (AR 5663.) The Biological Assessment also emphasizes that
the Project area is not located within any designated LAUs. (AR 5688.) The physical
characteristics of the Project area also were assessed and found not to be the type
associated with lynx habitat. (AR 5680) (noting that the “lodgepole pine forests in this
area grow on coarse volcanic soils that are well drained . . . , do not develop understories
of subalpine fir . . . [and] Lynx do not appear to be associated with dry forest habitat
types.”).
Similarly, because the snowshoe hare composes the main diet of the lynx, and the
habitat of the hare has been directly tied to the habitat of the lynx, the Forest Service also
examined the potential effects of the Project on snowshoe hare habitat. (AR 5689.)
According to the Forest Service, between January 2009 and March 2009, a total of 40
transects were established within the proposed thinning units for the purpose of
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documenting the presence of the lynx. (Id.) No lynx were documented, but the transects
did produce information on the presence of other wildlife species, including the snowshoe
hare. (Id.) These winter tracking routes demonstrated what the Forest Service
characterizes as a relatively low presence of snowshoe hare in the project area; snowshoe
hare were found on 9 of the 40 of the transects. (Id.) Out of the nine transects that noted
the presence of the hare, four indicated high densities and five indicated low densities of
tracks. (AR 5689-90.)
It also was noted that the data obtained from the snow tracking analysis was
consistent with previous snowshoe hare research done in the C-TNF. (AR 5690.) More
specifically, previous research “found that hares occur in reasonably high concentrations
when stand conditions are exactly right[,]” but based upon the characteristics of the
Project area, the Forest Service concluded that “while some stands in Island Park can
produce hares at densities similar to those observed in the Seeley Lake area (an area
known to support lynx [in Montana]), these stands will remain scattered, and will only
constitute a small proportion of the landscape.” (Id.)
Based on the above findings, the Forest Service determined that the Project was
“not likely to adversely affect” the lynx or its habitat (AR 5691), and requested a
concurrence from the FWS. (AR 5659.) It is clear from the Biological Assessment that
the Forest Service relied heavily on the 2005 map – the very first reason for the Forest
Service’s conclusion is that “The Split Creek precommercial thinning project area is not
within a LAU; therefore, no lynx habitat will be affected by the project.” (Id.) The
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document further states that “[m]anagement direction prohibiting precommercial thinning
in a LAU is not applicable to this project because the project area is not within a LAU.”
(Id.)
On August 11, 2009, after reviewing the Forest Service’s Biological Assessment,
the FWS concurred with the finding that the Project was “not likely to adversely affect”
the Canada lynx. (AR 5696.) The FWS listed several reasons for its concurrence,
including: lynx occurrences in the Project area were historically rare and “extremely
unlikely” (AR 5697-98); no documented reproducing lynx occurred within the Project
area (AR 5697); the Project area is not located within any designated critical habitat or
within any LAUs; while the Project does occur within linkage habitat, “all management
direction applicable to linkage areas will be met” (id.); and, winter snow tracking
transects in the Project area “revealed that snowshoe hares, which make up the majority
of a lynx’s diet, were not present on 31 of the 40 transects surveyed.” (AR 5698.) The
FWS concluded:
Based on the information provided in the Assessment, the
cooperation and coordination between the Service and Forest
while developing the Canada lynx LAU maps for the Forest,
the two streamlining meeting (in March 2007 and March
2009) to discuss the Split Creek Project, and the meeting on
July 6, 2009 also to discuss the Split Creek Project, the
Service concurs with the Forest’s determination that the
proposed Split Creek Project may affect, but is not likely to
adversely affect Canada lynx.
(AR 5698.) The concurrence also states that: “[t]he 2005 LAU map is the best scientific
information available for Canada lynx habitat in the Split Creek Project area . . . . As
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such, per the 2005 LAU map, the Split Creek Project area does not occur within an LAU;
therefore, no lynx habitat will be affected by the Split Creek Porject. Any management
direction precluding the use of precommercial thinning in a LAU is therefore not
applicable, and precommercial thinning is authorized by the Forest for the Split Creek
Project area. The Split Creek Project does occur within linkage habitat, all management
direction applicable to linkage areas will be met with the Split Creek Project.” (AR 5697.)
5. Environmental Assessment under NEPA
NEPA requires an agency to prepare an environmental impact statement (“EIS”)
for all “major Federal actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C). Federal regulations allow an agency to conduct an
environmental assessment (“EA”) to determine whether an EIS is required. 40 C.F.R. §
15024. The EA should “be a ‘concise public document’ that ‘briefly provides sufficient
evidence and analysis for determining whether to prepare an [EIS].’” Dep’t of Transp. v.
Pub. Citizen, 541 U.S. 752, 757-58 (2004); 40 C.F.R. § 1508.9(a). NEPA’s mandate is
“essentially procedural.” Vt. Yankee nuclear Power Corp. v. Natural Res. Def. Council,
Inc., 435 U.S. 519, 558 (1978). “It is to insure a fully informed and well-considered
decision.” Id.
In December of 2009, the Forest Service issued an Environmental Assessment for
the Split Creek Precommercial Thinning Project. (AR 11548.) The EA states that it was
prepared by the Forest Service in compliance with NEPA and “discloses the direct,
indirect, and cumulative environmental impacts that would result from the proposed
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action and no action alternative.” (AR 11552.) The EA is much broader in scope than the
Biological Assessment, and addresses not just the effects of the Project on the lynx and its
habitat, but also a variety of other environmental concerns.6
In the background section of the EA, the Forest Service sets forth a history of the
LAU mapping process and how the agency relied on the 2005 map. (AR 11553.) The
discussion – which includes an overview of the LCAS, the Lynx Conservation Agreement
from 2000, the standards governing LAUs under the LCAS and the 2000 Conservation
Agreement, and a discussion of the Lynx Management Direction – takes up a total of five
pages.7 (AR 11553-11557.) The summary of the adoption of the 2005 map itself takes up
a little more than one page. (AR 11556-57.) The EA states that, “[i]n April 2009 the
Regional Office completed their review of the 2005 map to be in compliance with the
Standards and Guidelines for the Northern Rockies Lynx Management Direction.” (AR
11557.)
Ultimately, the EA concludes that implementation of the Project “may affect, but
is not likely to adversely affect lynx or lynx habitat.” (AR 11593.) The EA sets forth
seven bullet point justifications for this finding, which were taken from the Biological
Assessment. The first bullet point states:
6 These include, inter alia, “[c]hanges in secure habitat, food resources for the
grizzly bear,” “[r]eduction in acres of elk hiding cover,” and “[c]hanges in hunter
densities and motorized access route densities.” (AR 11574.)
7 The EA spans 61 pages, excluding Appendices. (AR 11548-11609.)
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The Split Creek precommercial thinning project area is not
within a LAU, therefore, no lynx habitat will be affected by
the project. Management direction prohibiting precommercial
thinning in a LAU is not applicable to this project because the
project area is not within a LAU.
(AR 11593.) On December 16, 2009, the Forest Service issued a Decision Notice &
Finding of No Significant Impact (“FONSI”). (AR 12218.) The FONSI states that,
“[a]fter considering the environmental effects described in the EA, [the Forest Service]
ha[s] determined that Alternative 2 [implementation of the Project] . . . will not have a
significant effect on the quality of the human environment considering the context and
intensity of impacts.” (AR 12225.) Based on this finding, the Forest Service “determined
that it is not necessary to prepare an environmental impact statement for the Split Creek
Precommercial Thinning Project.” (Id.)
6. Procedural History
Based upon the Forest Service’s conclusion that the Project was “not likely to
adversely affect” the lynx or its habitat and that any possible adverse effects of the Project
on the lynx and its habitat would be “insignificant,” on December 16, 2009, the Forest
Service issued a Decision Notice and Finding of No Significant Impact approving
implementation of the Project. On January 29, 2010, Plaintiffs filed their administrative
appeal with the Forest Service. (AR 12241.) On March 22, 2010, the decision to
implement the Project was affirmed and Plaintiffs’ requested relief was denied. (AR
12403.) Precommercial thinning began in July of 2010.
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Plaintiffs filed a complaint in this Court on May 11, 2011. (Dkt. 1.) In their
amended complaint, Plaintiffs raise six claims under NEPA, NFMA, and the ESA. (Dkt.
18.) All six claims challenge either the agencies’ adoption of the 2005 LAU map or the
authorization of the Split Creek Project itself.8 The amended complaint seeks various
declarations from this Court that the Forest Service and the FWS violated the ESA,
NEPA, and NFMA by adopting the 2005 map and authorizing the Project. (Dkt. 18 at 33-
34.) Plaintiffs also request that the Court enjoin implementation of the Project and award
costs, expenses, and fees under the Equal Access to Justice Act and the ESA. (Dkt. 18 at
34.)
On August 24, 2011, Plaintiffs filed a motion seeking an order enjoining all
activities authorized by the Project, which were scheduled to recommence on August 23,
2011 – the second year of the Project. (Dkt. 25.) The Court denied the motion, finding
that Plaintiffs had not carried their burden of demonstrating irreparable harm. (Dkt. 24.)
8 Plaintiffs’ First Claim alleges that the agencies violated the ESA and NEPA by
authorizing the 2005 map and the Project without assessing the Project area for critical
habitat. (Dkt. 18 at 20.) The Second Claim alleges that the agencies’ adoption of the 2005
map “violates the ESA and NEPA by removing LAUs and occupied lynx habitat from
protection, thereby jeopardizing the survival of the species, and by failing to use the best
available science in remapping.” (Id. at 23.) The Third Claim asserts that “[t]he Forest
Service’s authorization of the remapped LAUs, which changed occupied habitat to
linkage habitat, violates NFMA and NEPA.” (Id. at 25.) The Fourth Claim alleges that
the Forest Service violated NFMA and NEPA because the Project failed to address the
Vegetation Standards contained in the Lynx Management Direction. (Id. at 28.) The Fifth
Claim asserts that the Forest Service violated NFMA and NEPA because the Project
failed to comply with Standard ALL S1 contained in the Lynx Management Direction.
(Id. at 29.) Plaintiffs’ final claim alleges that the Forest Service violated NEPA by failing
to take a “hard look” at the proposed Project’s affects. (Id. at 31.)
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Specifically, the Court found that Plaintiffs had failed to present evidence of resident lynx
within the Project area, and that they failed to present any scientific evidence or
quantitative expert testimony indicating that the Project would have an adverse impact on
the lynx. (Id.)
Plaintiffs filed a motion for summary judgment on November 7, 2011, (Dkt. 45),
and Defendants’ filed a cross-motion for summary judgment on November 14, 2011.
(Dkt. 46.) The motions were fully briefed and the parties presented oral arguments on the
motions on February 28, 2012.
DISCUSSION
1. Standard of Review
Judicial review of final agency decisions under NEPA, NFMA, and the ESA is
governed by the Administrative Procedures Act. Under the APA, an agency action must
be upheld unless it is found to be “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Friends of Earth v. Hintz,
800 F.2d 822, 830-31 (9th Cir. 1986). To decide if an agency action is arbitrary and
capricious, the court must determine whether the agency considered the relevant factors
and articulated a rational connection between the facts found and the choices made. Pac.
Coast Fed’n of Fishermen’s Ass’n, Inc. v. NMFS, 265 F.3d 1028, 1034 (9th Cir. 2001).
As long as the agency decision was based on the relevant factors and there is no clear
error of judgment, the reviewing court may not overturn the agency’s action as arbitrary
and capricious. Arizona v. Thomas, 824 F.2d 745, 748 (9th Cir. 1987).
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“Deference to an agency’s technical expertise and experience is particularly
warranted with respect to questions involving . . . scientific matters.” United States v.
Alpine Land and Reservoir Co., 887 F.2d 207, 213 (9th Cir. 1989). Nevertheless, the
“presumption of agency expertise may be rebutted if the decisions, even though based on
scientific expertise, are not reasoned.” Greenpeace v. NMFS, 80 F.Supp.2d 1137, 1147
(W.D. Wash. 2000). “Where an agency fails to articulate a rational connection between
the facts found and the choice made, the Court may not supply a reasoned basis for the
agency’s action that the agency itself has not given.” Defenders of Wildlife v. Babbit, 958
F.Supp. 670, 679 (D.D.C. 1997) (internal quotation marks and citations omitted).
Judicial review under this standard is to be “searching and careful,” but remains
“narrow,” and a court should not substitute it judgment for that of the agency. Mt.
Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir. 1993). An agency action
should be overturned only when 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. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29 (1983).
2. Waiver and Exhaustion
Defendants argue that Plaintiffs failed to raise their NEPA claims in their scoping
comments or in their administrative appeals, and that Plaintiffs’ arguments related to
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NEPA have therefore been forfeited under the judicial doctrine of waiver and the
statutory requirement that parties exhaust their claims at the administrative level.
Plaintiffs disagree and reference various portions of the record where the issues raised
here were raised during the administrative process.
It is well-settled that a party challenging an agency’s compliance with NEPA must
structure its participation in the administrative process to alert the agency to the party’s
contentions so the agency may give the concerns meaningful consideration. Barnes v.
U.S. Dep’t of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011) (finding plaintiff had waived
certain arguments because nothing in their comments alerted the agency of their specific
concerns). Similarly, 7 U.S.C. § 6912(e) requires that “a person shall exhaust all
administrative appeal procedures . . . before the person may bring an action in a court.” It
is not enough to raise some issues in an administrative appeal: “[C]laims raised at the
administrative appeal and in the complaint must be so similar that the district court can
ascertain that the agency was on notice of, and had an opportunity to consider and decide,
the same claims now raised in federal court.” Kleissler v. U.S. Forest Serv., 183 F.3d 196,
202 (3d Cir. 1999); see also Forest Gaurdians v. U.S. Forest Serv., 641 F.3d 423, 430-31
(10th Cir. 2011) (en banc).
Defendants argue that Plaintiffs failed to raise their claim concerning the adoption
of the 2005 LAU map at the administrative level. The record indicates otherwise. In its
comments to the proposed Project, Alliance for the Wild Rockies asked that the Forest
Service “complete NEPA on the Caribou-Targhee National Forest (CTNF) updated Lynx
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Analysis Unit mapping for the Canada Lynx that was done in consultation with US Fish
and Wildlife Service (USFWS) in 2005.” (AR 3147.) Similarly, Plaintiffs supplied the
following comments related to the adoption of the 2005 map in response to the Forest
Service’s scoping notice:
“The [Forest Service] deleted the project area from occupied
lynx habitat in March of 2005.” (AR 3154.)
“The Split Creek Precommercial Thinning Project cannot be
implemented because it will not be consistent with current
Forest Plan direction.” (Id.)
“The delineation of lynx analysis units (LAUs) on the
Targhee Forest has already been completed. Therefore, the
proposed ‘scoping’ for public involvement on this process is
post decision, and violates the National Environmental Policy
Act.” (AR 3155.)
“The 2005 delineation of LAUs . . . never went through the
public involvement process required by NEPA.” (Id.)
“The [Forest Service’s] attempts to justify the deletion of
habitat required for lynx management by applying various
unvalidated, unscientific ‘criteria’ for delineation of lynx
habitat cannot escape the NFMA requirements to adhere to
Forest Plan direction.” (Id.)
“Deletion of portions of the Targhee Forest from the Lynx
Amendment require a Forest Plan amendment with the
accompanying NEPA requirements of public involvement,
and formal Section 7 consultation with the USFWS. Until this
is done, precommercial thinning on the Targhee Forest will
not only be a Forest Plan violation, but a violation of the ESA
as well.” (Id.)
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Similarly, Plaintiffs’ administrative appeal states that “[t]he Forest Service will
violate NEPA . . . by . . . failing to complete NEPA requirements when making significant
changes in the delineation of occupied mapped lynx habitat on the forest,” (AR 12250);
that “the remapping of lynx habitat to delete many additional areas of the Forest as
occupied mapped lynx habitat triggered NEPA,” (AR 12259); and that the removal of
hundreds of thousands of acres of protected LAUs is “not an insignificant change”; and
that “this reduction clearly had the potential to adversely impact lynx in a significant
manner, impacts that would trigger both NEPA analysis and Section 7 (ESA)
consultation.” (AR 12260.)
These statements in the scoping comments and the administrative appeal are more
than sufficient to put the Forest Service on notice that Plaintiffs were taking issue with the
Forest Service’s failure to conduct full NEPA review of the 2005 map. The fact that the
word “tiering” does not appear in the scoping comments or the administrative appeal is of
no moment; the principle underlying the tiering concept was present – that the Forest
Service could not base its EA on the 2005 map without first analyzing the map itself
under NEPA. See Barnes, 655 F.3d at 1133 (noting that while the agencies might prefer
the petitioner to be more detailed in comments, “petitioners need not ‘incant [certain]
magic words . . . in order to leave the courtroom door open to a challenge.’”) (citing
Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 966 (9th Cir. 2002)).
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Based on the above, the Court finds that Plaintiffs neither forfeited nor failed to
exhaust their NEPA claims concerning the adoption of the 2005 map.9
3. NEPA
“NEPA is a statute that aims to promote environmentally sensitive governmental
decision-making, without prescribing any substantive standards.” Anderson v. Evans, 371
F.3d 475, 487 (9th Cir. 2004) (citing Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 353 (1989)). The United States Supreme Court has recognized that NEPA was
enacted with two purposes in mind, or “twin aims.” Baltimore Gas & Elec. Co. v. Natural
Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). The first of the twin aims “places upon [a
federal] agency the obligation to consider every significant aspect of the environmental
impact of a proposed action.” Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1066
(9th Cir. 2002) (alteration in original) (quoting Baltimore Gas & Elec. Co., 462 U.S. at
97). “Second, [NEPA] ensures that the agency will inform the public that it has indeed
considered environmental concerns in its decisionmaking process.” Baltimore Gas &
Elec. Co., 462 U.S. at 97.
Given the above “twin aims,” NEPA “establishes ‘action-forcing’ procedures that
require agencies to take a ‘hard look’ at environmental consequences.” Metcalf v. Daley,
9 Defendants also argue that Plaintiffs forfeited and/or failed to exhaust their
claims that the agency failed to adequately analyze the cumulative effects of the project or
discuss past, present or reasonably foreseeable future actions. Because the Court has
determined that the case must be remanded to the agency on different grounds, the Court
will not address this issue.
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214 F.3d 1135, 1141 (9th Cir. 2000). Among these “action-forcing” procedures is the
requirement that federal agencies prepare an EIS prior to taking “major Federal actions
significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). Some
proposed federal actions categorically require the preparation of an EIS. If the proposed
action does not categorically require the preparation of an EIS, which is the situation in
this case, the agency must prepare an EA to determine whether the action will have a
significant affect on the environment. Metcalf, 214 F.3d at 1142. If the EA determines
that the proposed action will significantly affect the environment, then the agency must
prepare an EIS. If the EA reveals no significant effect, the agency may issue a Finding of
No Significant Impact – or FONSI in NEPA parlance. See Id. at 1142; see also, 40 C.F.R.
§§ 1501.4, 1508.9.
In reviewing a challenge to the adequacy of an EA, courts apply a “rule of reason”
to determine whether the agency took a “hard look” at a proposed action by preparing a
“reasonably thorough discussion of the significant aspects of probable environmental
consequences.” Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1071 (9th Cir. 2002)
(internal quotation marks and citations omitted). “[I]f substantial questions are raised
regarding whether the proposed action may have a significant effect upon the human
environment, a decision not to prepare an EIS is unreasonable.” Save the Yaak Committee
v. Block, 840 F.2d 714, 717 (9th Cir. 1998).
In this case, it is undisputed that the Forest Service did not prepare an EIS for
either the 2005 map or the Split Creek Project. That, however, is where the agreement
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between the parties ends and the confusion begins. The parties’ arguments under NEPA
are akin to ships passing in the night, with only the obligatory signal as to the direction
they are heading and a distant voice in the darkness. Both parties use the regulations
promulgated by the Council on Environmental Quality (“CEQ”) as a starting point for
their NEPA analyses. The CEQ regulations define the term “significantly” for purposes of
NEPA (one of the findings that must be made before an agency is required to prepare an
EIS) and require agencies to look at the “context” and the “intensity” of a federal action
in determining whether it will have a significant affect on the environment. 40 C.F.R. §
1508.27.
The regulations state that “intensity” “refers to the severity of impact” and set forth
ten factors that an agency should consider in evaluating intensity. 40 C.F.R. §
1508.27(b)(1) - (10). Both parties make their arguments under these factors. However,
while Plaintiffs repeatedly reference the adoption of the 2005 map as the ‘significant
action’ requiring the preparation of an EIS, Defendants’ analysis of the same factors shifts
the focus to whether the Project (as opposed to the adoption of the 2005 map) was a
significant action requiring preparation of an EIS under NEPA.
Sorting through this confusion, two issues emerge. The first is whether the Forest
Service’s adoption of the 2005 LAU map is the type of federal action requiring NEPA
analysis under the circumstances presented in this case. Assuming that question is
answered in the affirmative, the second issue is whether the discussion of the 2005 map in
the EA prepared for the Split Creek Project cures any procedural defects related to the
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2005 map and the agency’s obligations under NEPA.
A. Whether adoption of the 2005 map required NEPA review
NEPA requires the preparation of an EIS only for “major Federal actions
significantly affecting the quality of the human environment.” See 42 U.S.C. § 4332(C).
In their briefing, Plaintiffs state that “[t]he incorporation of the 2005 Map was not
adequately addressed at the project-level; rather, the 2005 Map is a landscape scale
remapping that impacts hundreds of thousands of acres of protected Canada lynx habitat
that the Forest Service chose to implement without NEPA analysis.” (Pl.s’ Reply and
Opposition at 5, Dkt. 50.) Plaintiffs further argue that the adoption of the 2005 map was
“a major federal action with significant effects to the Canada lynx and its habitat, and an
EIS should have been completed.” (Id.)
The federal regulations define “major Federal action” as “actions with effects that
may be major and which are potentially subject to Federal control and responsibility.” 40
C.F.R. § 1508.18. While that definition alone is not considerably instructive, the
regulations state that “Federal actions tend to fall within one of [four] categories.” The
second category is described as the “[a]doption of formal plans, such as official
documents prepared or approved by federal agencies which guide or prescribe alternative
uses of Federal resources, upon which future agency actions will be based.” 40 C.F.R. §
1508.18(b)(2).
The Court finds that the adoption of the 2005 map falls nicely within the above
definition. The 2005 map was a document officially approved by the Forest Service.
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Indeed, the Split Creek Project was originally approved by the Forest Service in
December of 2007 and relied on the 2005 map, which had not yet been approved by the
Regional Forester. (AR 3028.) However, after receiving objections to the use of a map
that had not been exposed to public comment, the Forest Service withdrew the Project in
August of 2008 to provide notice and comment on both the 2005 map and the Project.
There also seems to be little room for debate over whether the 2005 map ultimately
governs “uses of Federal resources, upon which future agency actions will be based.” 40
C.F.R. § 1508.18(b)(2). Without the adoption of the 2005 map – and the attendant
elimination of nearly 400,000 acres of land within LAUs – the Project area would have
been subject to the restrictions contained in the Lynx Management Direction, which
prohibits precommercial thinning within LAU boundaries. With the adoption of the 2005
map, the 390,900 acres of previously restricted land was opened for uses that were not
available without the adoption of the map.
Defendants skirt the issue of whether the adoption of the 2005 map was a major
Federal action. In their cross-motion for summary judgment, Defendants claim that “the
2005 LAU map is not a programmatic management guideline, nor is it a broad program
from which future projects will result.” (Dkt. 46-2 at 19.) Defendants do not, however,
directly claim that the adoption of the 2005 map did not constitute a federal action
requiring NEPA analysis. In the same paragraph, Defendants retort that “[t]he EA clearly
summarizes the changes to the map and provides information that led to the 2005 LAU
map.” (Dkt. 46-2 at 19.) This statement seemingly suggests that the map was subject to
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NEPA review and, in Defendants’ view, the EA satisfied the Forest Service’s NEPA
obligations regarding the 2005 map.
Plaintiffs cite Kern v. U.S. Bureau of Land Management, 284 F.3d 1062, 1066 (9th
Cir. 2002), in support of their argument that an EIS should have been prepared for the
2005 map. The Court agrees that Kern is relevant here and will now turn to a discussion
of that case.
In Kern v. U.S. Bureau of Land Management, environmentalists brought an action
against the Bureau of Land Management (“BLM”) challenging an EIS prepared for a
resource management plan governing timber sales on the Oregon Coast. 284 F.3d at 1066.
The plaintiffs in that case, like Plaintiffs here, argued that the EIS was inadequate under
NEPA because the EIS referred to certain earlier adopted guidelines (governing the
management of a pathogenic root fungus) that had not themselves been subjected to
NEPA review. Id. at 1068.
The plaintiffs in Kern argued that the reference in the EIS to the guidelines, which
had not been analyzed under NEPA, constituted illegal “tiering.” Id. at 1073. Tiering
refers to the process whereby an agency is allowed to reference an earlier agency decision
or policy when assessing the environmental impacts of a smaller project under NEPA
without going into a full-blown discussion of the earlier decision. NEPA regulations
encourage agencies to tier their environmental impact statements to “eliminate repetitive
discussions of the same issues and to focus on the actual issues ripe for decision at each
level of environmental review.” 40 C.F.R. 1502.20. Through this tiering process, an
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agency need not discuss the impacts of a broader agency policy or decision in an
assessment of a smaller agency action, even if it falls under the umbrella of the more
global policy. This paper-saving policy, however, applies only when the broader decision
already has been subject to NEPA review. Id. at 1173. Indeed, in Kern, the Ninth Circuit
stated that “tiering to a document that has not itself been subject to NEPA review is not
permitted, for it circumvents the purpose of NEPA.” Id.
The odd aspect of Kern, however, was that the guidelines already had been
challenged in federal court and the Ninth Circuit previously had held that the guidelines –
at the time they were adopted – were not subject to NEPA review. See Northcoast Envtl.
Ctr. v. Glickman, 136 F.3d 660 (9th Cir. 1998)). In that case, the same plaintiffs as those
in the Kern case filed suit alleging that the guidelines should have been analyzed under
NEPA and that an EIS should have been prepared. Northcoast Envtl, Ctr., 136 F.3d at
662. The Ninth Circuit disagreed, holding that the guidelines did not constitute a major
federal action under NEPA. Id. at 665. The crux of the court’s holding was that the
guidelines were primarily preliminary research and development efforts – they “neither
propose any site-specific activity nor do they call for specific actions directly impacting
the physical environment.” Id. at 670. The circuit court did note, however, that although
the guidelines in and of themselves did not need to be analyzed under NEPA, if they were
incorporated into a specific agency action they would be subject to NEPA in the context
of that action. Id. The court stated:
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There is no reason plaintiffs cannot challenge the sufficiency
of an agency EIS when a discrete agency action is called for.
The agencies will be unable to shield their . . . program from
NEPA review because they will not be able to avail
themselves of the Council on Environmental Quality’s
“tiering” provision.” [citation omitted]. . . . Furthermore, the
Secretaries have stated their intentions to prepare an EIS
when they propose to implement particular control strategies
with environmental impacts. As we stated in [Salmon River
Concerned Citizens v. Robertson, 32 F.3d 1346 (9th Cir.
1994), judicial estoppel will prevent the Secretaries from
arguing they have no further duty to consider their . . .
management policies when sitespecific programs are
challenged. [citation omitted]. “We assume that government
agencies will . . . comply with their NEPA obligations in later
stages of development.” Id. at 1358.
Northcoast Envtl, Ctr., 136 F.3d at 6770.
Based upon the above referenced statements in Northcoast, the court in Kern held
that, while the guidelines may not have been subject to NEPA review at the time they
were created, the agency could not reference the guidelines in a site-specific EIS without
first analyzing the guidelines under NEPA; such an action, the court held, constituted
illegal tiering. Kern, 284 F.3d at 1073.
Here, Plaintiffs argue that the authorization of the Split Creek Project (which the
Forest Service assessed in an EA under NEPA) based upon the 2005 map (which was not
analyzed under NEPA) constitutes improper tiering. This argument is simply a reiteration
of Plaintiffs’ main contention that the agencies should have conducted an EIS for the
adoption of the 2005 map prior to using the revised map as a basis for approving the
Project. Defendants contend that this argument is a red herring. They claim that, unlike
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the guidelines at issue in Kern, the 2005 map is not a programmatic management
guideline, nor is it a broad program from which future projects will result.
The Court agrees with Plaintiffs and finds that the 2005 map should have been
analyzed under NEPA in this case. Regardless of whether the 2005 map needed to be
analyzed under NEPA at the time it was adopted,10 under Kern the Forest Service was
required to conduct NEPA review of the 2005 map before using the map as a basis for
approving the Split Creek Project. The 2005 map removed eight LAUs from the 2001
map. It eliminated almost 400,000 acres of land that was previously subject to greater
environmental restrictions under the Lynx Management Direction. It opened nearly
400,000 acres of land to precommercial thinning projects – projects that would be
prohibited under the earlier map and the restrictions applicable to LAUs. Although the
2005 map was subjected to public comment prior to the approval of the Project, the map
was never subjected to independent NEPA review, which would have required an
analysis of the potential affects the removal of the LAUs would have on the lynx, its
habitat, and the habitat of the snowshoe hare. Such analysis is absent in this case. The
absence of such analysis violates NEPA’s procedural requirements and the Ninth
Circuit’s decision in Kern.
10 The Court does not decide the question of whether the 2005 map should have
been subjected to NEPA review at the time it was adopted. In other words, the issue in
Northcoast is not before the Court. Kern governs this case and a NEPA analysis of the
2005 map was required before it could be used as a basis for approving the Project.
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B. Discussion of the 2005 map in the EA prepared for the Project
The second issue related to the parties’ NEPA arguments is whether the discussion
of the 2005 map in the EA prepared for the Project cured any procedural defects related to
the 2005 map and the agency’s obligations under NEPA. The Court answers this question
in the negative – the discussion of the 2005 map in the EA did not satisfy the Forest
Service’s obligations under NEPA.
(1) Factors for determining whether an action is significant
NEPA regulations list ten factors for determining whether an action is significant
and therefore triggers the need for an EIS. 40 C.F.R. § 1508.27. Because the agencies’
authorization of the Project is dependent upon the propriety of the adoption of the 2005
map, the factors related to the 2005 map will be discussed below.
(a) Significance may be triggered if the geographic area has unique
characteristics. 40 C.F.R. 1508.27(b)(3)
The regulations list park lands, prime farmlands, wetlands, wild and scenic rivers,
and ecologically critical areas as non-exclusive examples of areas demonstrating unique
characteristics. 40 C.F.R. 1508.27(b)(3). The geographic area in this case is national
Forest land, much of which was previously deemed within the boundaries of LAUs and
protected lynx habitat under the Lynx Management Direction. In their response to
Plaintiffs’ argument on this factor, Defendants argue that “[t]he Caribou-Targhee
National Forest (CTNF) has not designated critical habitat for lynx [and] [t]he Project
area is not within an LAU.” (Def.s’ Mem. In Support of Cross-Mot. For Summ. J. at 10,
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Dkt. 46-2.) This argument misses the point. If the adoption of the 2005 map and the
elimination of LAUs in the Project area was procedurally improper, the EA cannot
withstand judicial review. Under the Lynx Management Direction and the Forest Plan,
which incorporates the vegetation standards contained in the Lynx Management
Direction, the land within the boundaries of LAUs is subject to various environmental
restrictions. By definition, LAUs have unique characteristics. The Court finds that this
factor weighs in favor of a finding of significance, which would require the preparation of
an EIS.
(b) An action may be significant if it is likely to be highly
controversial. 40 C.F.R. 1508.27(b)(4)
The fact that members of the public disagree with a project does not in itself make
the project highly controversial for the purposes of the federal regulations. A proposed
action is “highly controversial,” when there is “a substantial dispute [about] the size,
nature, or effect of the major Federal action rather than the existence of opposition to a
[project].” Anderson v. Evans, 314 F.3d 1006, 1018 (9th Cir. 2002). The Forest Service
explains that there are no highly controversial effects of the Project because of its limited
context, size and location. Again, Defendants shift focus to the Project rather than to the
adoption of the 2005 map. As Plaintiffs suggest, this ignores the removal of hundreds of
thousands of acres of threatened species habitat from management protection.
The Court finds that there is a substantial dispute about the nature and effect of the
adoption of the 2005 map and the attendant elimination of LAUs within the Project area.
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Defendants contend that the adoption of the 2005 map was basically administrative in
nature and that it was authorized by (and done in accordance with) Standard LAU S1
contained in the Lynx Management Direction, which states that “[c]hanges in LAU
boundaries shall be based on site-specific habitat information and after review by the
Forest Service Regional Office.” (AR 1576.) Plaintiffs place much more significance on
the nature of the Forest Service’s decision to radically change the boundaries of LAUs
within the C-TNF. The dispute over the nature and affect of the 2005 map is highly
controversial, supporting a finding of significance under 40 C.F.R. 1508.27(b)(4).
(c) An action may be significant if the effects on the environment are
highly uncertain or involve unique or unknown risks. 40 C.F.R.
1508.27(b)(5)
Plaintiffs assert that “research and literature on the ecology of lynx in the southern
portion of its range is sparse.” (Dkt. 45-2 at 7) (citing AR 12226). Plaintiffs further
represent that, “[b]ecause little is known about this imperiled species, conservation
guidelines detailed in the LCAS are ‘decidedly conservative, especially with respect to
timber management, and are applied broadly to cover all habitats thought to be of possible
value to lynx and hare.’” (Id.) (quoting from the record at AR 13150-13151).
Defendants argue that, “[w]hile Plaintiffs are correct in stating that the Lynx
Conservation Assessment Strategy (LCAS) committed to a more conservative
management approach in some aspects of lynx management, [AR] 4588, the LCAS was
clear in stating when additional information became available, the LCAS should be
amended to reflect a more appropriate approach.” (Dkt. 46-2 at 13.) Defendants further
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argue that, “[s]ince the LCAS was issued in 2000, specific habitat information was
gathered through both habitat and presence surveys, which permitted refinement of the
LAU map.” (Id.)
While the development of new data may lessen the uncertainty of the impacts of a
project under 40 C.F.R. 1508.27(b)(5), such development also weighs in favor of NEPA
analysis so that the new data can be subjected to peer review and public comment.
Without those procedural safeguards, the value of any new data is limited. As Plaintiffs
suggest, the elimination of nearly 400,000 acres of land previously protected under the
restrictions applicable to LAUs is out of step with the conservative approach adopted by
the agencies in the LCAS as well as the standards set forth in the Lynx Management
Direction.
(d) Significance may be triggered if the action might establish a
precedent for future actions or represent a decision in principle
about a future consideration. 40 C.F.R. 1508.27(b)(6).
For the significance factor set out in 40 C.F.R. 1508.27(b)(6) to exist, the agency
action “must establish a precedent for future actions with significant effects or represent[]
a decision in principle about a future consideration.”
Plaintiffs state that, “[w]hile the Split Creek Project is limited to 7,000 acres of
precommercial thinning, this is merely the first site-specific implementation of the
landscape-scale remapping of LAUs on the Forest.”11 (Dkt. 45-2 at 8.) Plaintiffs also
11 Plaintiffs make this argument under a different factor, 40 C.F.R. 1508.27(b)(7),
which states that significance exists if it is reasonable to anticipate a cumulatively
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argue that “[t]he several hundred thousand acres removed from LAUs, acres that were
previously protected from precommercial thinning, will now similarly be open to thinning
and logging.” (Id.) Defendants contend that Plaintiffs have not, in fact, identified any
additional future actions for which the EA establishes a precedent. (Dkt. 46-2 at 14.)
The Court finds that this factor also weighs in favor of a finding of significance.
The Court agrees with Defendants that the EA for the Project does not necessarily
establish a precedent. But this argument misses the point by shifting the focus from the
adoption of the 2005 map to the authorization of the Project itself. The adoption of the
2005 map opened nearly 400,000 acres of land to precommercial thinning. The fact that
no other precommercial thinning projects have been identified does not diminish the fact
that the adoption of the 2005 map “represents a decision in principle” about the future use
of the land within the C-TNF. This factor weighs in favor of a finding of significance.
(e) An action may be significant if it may adversely affect an
endangered or threatened species or its habitat that has been
designated critical. 40 C.F.R. § 1508.27(b)(9)
Under the ESA, when a species is listed as threatened, the FWS is required to
“designate any habitat of such species which is then considered to be critical habitat.” 16
U.S.C. § 1533(a)(3). As indicated above, the FWS listed the lynx as threatened in 2000.
The agency did not, however, designate critical habitat for the lynx as required by the
ESA. This failure was challenged in federal court, and resulted in a court order requiring
significant impact on the environment. Plaintiffs’ argument, however, fits better under the
“precedent for future actions” factor.
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the FWS to “undertake prompt rulemaking to designate [l]ynx critical habitat.” Defenders
of Wildlife v. Norton, 239 F. Supp. 2d 9, 26 (Dist. D.C. 2002). Following the FWS’s
attempt to comply with the order, and more legal challenges, the FWS published its final
revised critical habitat designation for the lynx on February 25, 2009. See Alliance For
the Wild Rockies v. Lyder, 728 F. Supp. 2d 1126, 1129 (Dist. Mont. 2010.) The revised
rule designated five units, encompassing approximately 39,000 square miles as critical
habitat. Unit three includes a small part of Northeastern Idaho in Boundary County. The
remaining units are located in Maine, Minnesota, Washington, Wyoming, and Montana.
The Project, which is located in Southeast Idaho, is not located within any lynx habitat
designated critical by the Fish and Wildlife Service.
Plaintiffs accurately point out that the FWS’s final revised rule was successfully
challenged in Alliance For the Wild Rockies v. Lyder, 728 F. Supp. 2d 1126 (Dist. Mont.
2010). In that case, the Alliance (and three other environmental groups) challenged the
FWS’s failure to designate critical habitat in certain national forests in Montana and
Idaho, including the Beaverhead-Deerlodge, Bitterroot, Helena, and Lolo National
Forests in Montana, and the Clearwater and Nez Perce National Forests in Idaho. The
Alliance argued that the FWS’s reliance on the absence of evidence of reproduction of
lynx in the relevant forests was arbitrary and constituted error. The court agreed, stating
that the “Service arbitrarily treated evidence of reproduction as a litmus test rather than as
a relevant factor to consider if the challenged national forests in Montana and Idaho
contain the primary constituent element [referring to the biological characteristics that
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define lynx habitat].” Id. at 1135. The court ordered the FWS to consider the physical
and biological features of the occupied areas to determine whether they should be
designated as critical habitat under the ESA, but also concluded that the agency’s final
rule would stay in effect “while the Service revisits the issue.” Id. at 1135, 1145. The
FWS has not issued a revised rule. Thus, Defendants are correct that there is no land in
the C-TNF that has been designated “critical” by the FWS. (AR 5541-42.)
Plaintiffs argue that the Split Creek Project area and the LAUs abandoned in the
2005 map meet the criteria for critical habitat. That issue, however, is not before the
Court. To the extent Plaintiffs speculate that the revised final rule mandated by the Lyder
decision may result in the designation of critical habitat in the C-TNF, the Court finds that
it is unnecessary to engage in this discussion given the Court’s holding that the Forest
Service illegally tiered the Split Creek Project EA to the 2005 map.
(f) An action may be significant if it threatens a violation of Federal,
State, or local law. 40 C.F.R. § 1508.27(b)(10)
Plaintiffs argue that the Forest Service’s failure to prepare an EIS for the adoption
of the 2005 map under NEPA also resulted in violation of the ESA and NFMA. For
instance, Plaintiffs argue that the Biological Opinion prepared pursuant to the ESA was
not based upon the “best available science” because the document relies upon the 2005
map and justifies the finding that the Project is “not likely to adversely affect” the lynx or
its habitat based on the fact that no LAUs exist in the Project area. Similarly, Plaintiffs
assert that the failure to apply the vegetation standards contained in the Lynx
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Management Direction (and the Forest Plan) violated NFMA. These are legitimate
concerns. As discussed more fully below, the Court agrees with Plaintiffs that the failure
to analyze the 2005 map under NEPA undermines the Forest Service’s decision under the
ESA. And, although the Court does not reach Plaintiffs’ claims under NFMA, the danger
that the Project does not comply with the Forest Plan is a real one. For these reasons, the
Court finds that this factor supports a finding of significance under 40 C.F.R. §
1508.27(b)(10).
C. Summary of NEPA analysis
Concerning Plaintiffs’ NEPA claims, the Court finds as follows. First, the Court
finds that the Forest Service’s use of the 2005 map in the EA for the Split Creek Project
without first reviewing the 2005 map under NEPA constituted illegal tiering under Kern.
Second, the Court finds that the majority of the factors contained in 40 C.F.R. § 1508.27
support a finding of significance, which would require the agency to prepare an EIS.
Based upon these findings, the Court holds that the Forest Service did not take the
requisite “hard look” at the 2005 map as contemplated by NEPA. The Forest Service’s
reliance on the 2005 map in the EA (and the subsequent issuance of a FONSI) was a clear
error of judgment. Arizona v. Thomas, 824 F.2d 745, 748 (9th Cir. 1987). The
authorization of the Split Creek Precommercial Thinning Project will be enjoined and the
case will be resubmitted to the Forest Service for further NEPA analysis consistent with
this decision.
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4. ESA Claims
Section 7(a)(2) of the ESA states that “[e]ach Federal agency shall, in consultation
with and with the assistance of the Secretary, insure that any action authorized, funded, or
carried out by such agency . . . is not likely to jeopardize the continued existence of any
endangered species or threatened species or result in the destruction or adverse
modification of habitat of such species.” 16 U.S.C. § 1536(a)(2) (emphasis added). The
consultation between the agencies and a written decision of the FWS concerning whether
an action will adversely affect a listed species or critical habitat is mandatory under the
ESA.
Here, the Forest Service consulted with the FWS pursuant to Section 7(a)(2) of the
ESA to assess the impacts of the Split Creek Project on the lynx and its habitat. The
Forest Service, in a Biological Assessment, concluded that although the Project “may
affect” the lynx, it was “not likely to adversely affect” the lynx or its habitat. The Forest
Service then presented this determination to the FWS, the agency charged with
implementing the ESA, and the FWS concurred with the Forest Service’s findings.
Plaintiffs argue that approval of the Project violated the ESA for three reasons.
First, Plaintiffs argue that the decision to adopt the 2005 map and the finding that the
Project was not likely to adversely affect the lynx or its habitat were not based upon the
best available science. Second, Plaintiffs argue that the Project area contains critical
habitat and that the agencies’ contrary conclusion is arbitrary and violates the ESA. Third,
Plaintiffs argue that the agencies’ failure to make a jeopardy determination for the 2005
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map violated the ESA. Plaintiffs’ third argument is addressed below.12
As noted above, Section 7 of the ESA requires the Forest Service, in consultation
with FWS, to make a finding as to whether an agency action is likely to jeopardize the
continued existence of any listed endangered or threatened species or result in the
destruction or adverse modification of the designated critical habitat of the species. 16
U.S.C. § 1536(a)(2). “Agency action” is interpreted broadly, see TVA v. Hill, 437 U.S.
153, 173 n. 18 (1978), and “the ESA requires the biological opinion to analyze the effect
of the entire agency action.” Conner v. Burford, 848 F.2d 1441, 1453 (9th Cir. 1988).
Here, Plaintiffs assert that there was no determination regarding whether the
adoption of the 2005 map and the removal of approximately 400,000 acres of land
previously designated as LAUs would jeopardize the continued existence of the lynx.
Defendants direct the Court to a biological opinion from 2007 on the potential affects of
the standards and guidelines contained in the Lynx Management Direction. (AR FWS
208.) The biological opinion concludes that the adoption of the standards and guidelines
contained in the Lynx Management Direction are “not likely to jeopardize the continued
12 The Court is not in a position to rule on Plaintiffs’ first two arguments under the
ESA. As outlined above, the question related to the propriety of the FWS’s designation of
critical habitat (or lack thereof in the C-TNF) is not properly before the Court. Similarly,
given the procedural irregularities related to the adoption of the 2005 map, the Court is
not in a position to rule on the question of whether the best available science was used in
adopting the map and approving the Project. The 2005 map may very well be based upon
the best available science. However, without the benefit of the procedural safeguards
under NEPA and the requisite jeopardy determination under the ESA, the Court cannot
approve the use of the 2005 map.
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existence of lynx within the contiguous United States.” (Id. at 282.)
Defendants argue that, because a jeopardy determination was made for the
standards contained in the Lynx Management Direction, and those standards were used in
revising the LAU map in 2005, the agencies satisfied their obligations under the ESA.
The Court does not agree.
The biological opinion from 2007 does not assess the validity of the 2005 map and
nothing in the record demonstrates that the FWS ever made a decision concerning
whether the adoption of the 2005 map would jeopardize the lynx. The record
demonstrates that the FWS concluded that the adoption of the standards and guidelines
contained in the Lynx Management Direction warranted consultation and a jeopardy
determination under the ESA. Similarly, the Biological Assessment prepared for the Split
Creek Project concluded that the Project “may affect” but was “not likely to adversely
affect” the lynx or its habitat. But the agencies skipped a step. That step should have been
an evaluation of whether the implementation of the guidelines from the Lynx
Management Direction and the elimination of 390,900 acres of land within the boundaries
of LAUs in the 2005 map would adversely affect the lynx or its habitat. The failure to
assess whether the adoption of the 2005 map would jeopardize the lynx or its habitat
violated the ESA.
5. Remedies
The Administrative Procedure Act directs that a court “shall . . . set aside” any
agency action found to be “arbitrary capricious, . . . or otherwise not in accordance with
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law.” 5 U.S.C. § 706(2)(A). The Supreme Court has held that vacatur is the presumptive
remedy for this type of violation. See Fed. Election Comm’n v. Akins, 524 U.S. 11, 25
(1998) (“If a reviewing court agrees that the agency misinterpreted the law, it will set
aside the agency’s action and remand the case.”). Having found violations of NEPA and
the ESA,13 the Court concludes that remand is the appropriate remedy in this case. See
Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1034-35 (D.C. Cir. 2008). Further,
given the above disposition, the Split Creek Project will be enjoined until the agencies
satisfy their obligations under NEPA and the ESA. See Lands Council v. Powell, 395 F.3d
1019, 1037 (9th Cir. 2005).
Defendants argue that, even if the Court finds a violation under NEPA or the ESA,
“Plaintiffs would not be entitled to any injunctive relief.” (Dkt. 46-2 at 30.) The Court
disagrees. The Court has determined that the EA and the Finding of No Significant
Impact under NEPA were procedurally defective because they relied upon a document
that itself should have been, but was not, vetted under NEPA. The Court also has
determined that the FWS should have made a jeopardy determination for the 2005 map.
These decisions by the Forest Service and the FWS were the basis for the authorization of
13 Plaintiffs also raise a claim under the National Forest Management Act. 16
U.S.C. § 1600 et seq. Plaintiffs’ argument is rather straight forward: if the 2005 map is
invalid due to the agencies’ failure to conduct the proper analysis under NEPA, then the
2001 map, which delineated LAUs within the project area remained in effect, and the
Forest Service violated NFMA by not following the vegetation standards contained in the
Lynx Management Direction and applicable to LAUs. Given the Court’s rulings on the
NEPA and ESA claims, the Court will not address the alleged violations of NFMA.
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the Project. And there can be no dispute that the Project itself is altering the physical
landscape by removing trees on land that was previously subject to restrictions for the
benefit of a protected species under the ESA. In the absence of a valid FONSI and
biological assessment, the Court fails to grasp how the Project can continue.
Notwithstanding the Court’s puzzlement concerning Defendants’ argument in this
regard, because the injunction is an important aspect of Plaintiffs’ requested relief and the
Court’s order, the Court will briefly consider the factors required for an injunction.
The standard for a permanent injunction is essentially the same as for a preliminary
injunction with the exception that the plaintiff must show actual success on the merits
rather than a likelihood of success. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531,
546 n. 12 (1987). To obtain injunctive relief, the plaintiff must demonstrate: (1) success
on the merits; (2) likelihood of irreparable harm absent injunctive relief; (3) that,
considering the balance of hardships between the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public interest would not be disserved by an
injunction. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008) (setting forth
the factors for preliminary injunctive relief).
Here, through this order, Plaintiffs have demonstrated success on the merits of
their NEPA and ESA claims. Concerning the second factor, the Ninth Circuit has stated,
“[e]nvironmental injury, by its nature, can seldom be adequately remedied by money
damages . . . i.e., [it is] irreparable.” Sierra Club v. Bosworth, 510 F.3d 1016, 1033-1034
(9th Cir. 2007). Defendants argue that nothing has changed since the Court denied
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Plaintiffs’ request for a preliminary injunction, which specifically found that Plaintiffs
had failed to make a showing of irreparable injury.
The Court sees things a bit differently. The focus during the preliminary injunction
proceedings was on potential harm to the lynx and its critical habitat under the legal
framework of the ESA. When denying Plaintiffs’ motion, the Court stated that, “while
the record indicates . . . some historic presence [of the lynx] within the boundary of the
Caribou-Targhee National Forest, Plaintiffs have presented no evidence of the lynx’s
occupancy within the Project area.” (Dkt. at 24.) It also was (and remains) undisputed that
the FWS has not designated any critical habitat for the lynx within the Project area.
Plaintiffs chose not to focus on their NEPA claims in their motion for preliminary
injunction. Indeed, Plaintiffs state as much in their reply brief: “Plaintiffs did not discuss
NEPA violations at length in their Brief for a preliminary injunction due to space
limitations and because they chose to prioritize ESA claims due to the lessened standards
for preliminary injunctions under the ESA.” (Pl.s’ Reply to Def.s’ Brief in Opp., at 6, Dkt.
32.) Plaintiffs also noted, however, that they “intend[ed] to fully brief their NEPA
arguments in their summary judgment briefing.” (Id.) Plaintiffs fulfilled their intention,
and the Court has found that the agencies did not comply with NEPA when they approved
the Project based upon the un-vetted 2005 LAU map. The irreparable injury in this case is
the alteration of land that was (and perhaps should remain) subject to environmental
restrictions applicable to LAUs.
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Finally, the Court finds that an equitable remedy is warranted in this case and is
supported by the public interest. See National Wildlife Federation v. National Marine
Fisheries Service, 235 F.Supp.2d 1143, 1162 (W.D. Wash. 2002) (“ensuring that
government agencies comply with the law is a public interest of the ‘highest order.’”)
(quoting Seattle Audubon Soc’y v. Evans, 771 F.Supp. 1081, 1096 (W.D. Wash. 1991)).
ORDER
Based on the foregoing, the Court being otherwise fully advised in the premises,
IT IS HEREBY ORDERED that:
1. Plaintiffs' Motion for Summary Judgment (Dkt. 45) is GRANTED IN
PART AND DENIED IN PART in accordance with this decision.
2. Defendants' Cross-Motion for Summary Judgment (Dkt. 46) is DENIED.
3. The Decision Notice & Finding of No Significant Impact is hereby
remanded to the Forest Service for further evaluation under NEPA consistent with this
decision.
4. The "Biological Assessment for the Canada Lynx (Lynx canadensis) for
Split Creek Precommercial Thinning Project" dated July 22, 2009, and the Fish and
Wildlife Service's concurrence with the Forest Service's assessment are hereby remanded
to those agencies for further consideration consistent with this decision.
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5. The Split Creek Precommercial Thinning Project is hereby enjoined.
DATED: June 6, 2012
Honorable Candy W. Dale
Chief United States Magistrate Judge
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