Case 9:18-cv-00087-DLC Document 93 Filed 06/09/20 Page 1 of 11
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`IN TIIE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`MISSOULA DIVISION
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`FILED
`JUN O 9 2020
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`NATIVE ECOSYSTEMS COUNCIL,
`ALLIANCE FOR THE WILD
`ROCKIES,
`
`Clerk, U.S. District Court
`District Of Montana
`Mi-9-r,ou!a
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`CV 18-87-M-DLC
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`Plaintiffs,
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`ORDER
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`vs.
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`LEANNE MARTEN, Regional
`Forester, USFS Region One, U.S.
`FOREST SERVICE, and U.S. FISH &
`WILDLIFE SERVICE,
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`Defendants,
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`and
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`SUN MOUNTAIN LUMBER, INC., a
`Montana Corporation,
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`Defendant-Intervenor.
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`In its May 26, 2020 Order ruling on the parties' cross-motions for summary
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`judgment, the Court granted Federal Defendants' request to delay ruling on remedy
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`in the event the court found a violation in the Forest Service's decision to
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`implement the North Hebgen Multiple Resource Project ("the Project"), and to
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`allow Federal Defendants the opportunity to provide additional briefing on whether
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`Case 9:18-cv-00087-DLC Document 93 Filed 06/09/20 Page 2 of 11
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`to remand with or without vacatur. (Doc. 85 at 41.) Purportedly due to workflow
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`disruptions from the pandemic, Federal Defendants requested two extensions to
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`file their brief. (Docs. 86, 88.) Now, instead of squarely addressing vacatur,
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`Federal Defendants claim that no remedy is required because the agencies have
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`subsequently corrected all deficiencies found in the Court's prior Order. (Doc. 90
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`at 2.) Along with their brief, Federal Defendants attach a supplemental
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`information report ("SIR") recalculating elk hiding cover, a biological assessment
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`("BA") for wolverine, and a letter of concurrence from the Fish and Wildlife
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`Service ("FWS"). (Docs. 90-1, 90-2, 90-3.) Plaintiffs claim the newly submitted
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`work is inadequate because it does not comply with the National Environmental
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`Policy Act ("NEPA"). (Doc. 92 at 7-8.) Procedurally, this case has become a
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`mess.
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`Cognizant of its duty to construe the Federal Rules "to secure the just,
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`speedy, and inexpensive determination of every action," Fed. R. Civ. Pro. I, the
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`Court will construe Federal Defendants' remedy brief as a motion under Rule 60 to
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`dissolve the injunction. 1 Because the Court finds the work adequate, the Court will
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`1 Having concluded that the Project violated various environmental laws, the appropriate remedy
`inevitably required remand, see All.for the Wild Rockies v. United States Forest Serv., 907 F.3d
`1105, 1121 (9th Cir. 2018), the only question was whether to remand with or without vacating
`the record of decision. Vacatur is the presumptive remedy, id, however, where equity requires,
`a court may remand without vacatur upon weighing the "seriousness of the agency's errors
`against 'the disruptive consequences'" of delay, Pollinator Stewardship Council v. US. E.P.A.,
`806 F.3d 520,532 (9th Cir. 2015) (quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory
`Comm'n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)). Attempting to analyze these factors when the
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`Case 9:18-cv-00087-DLC Document 93 Filed 06/09/20 Page 3 of 11
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`dissolve its injunction and allow the Project to proceed.
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`Background
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`The Project is located within the Greater Yellowstone Ecosystem on the
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`Hebgen Ranger District of the Custer-Gallatin National Forest, just north of West
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`Yellowstone, Montana. (Doc. 85 at 2.) The Project is designed to minimize
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`damage from fire, improve forest health, and decrease human-grizzly bear
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`interactions at a popular campground. (Id) Eighty percent of the Project occurs in
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`wildland urban interface. (Id.)
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`Plaintiffs brought suit on May I 5, 2018, alleging the following four
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`violations of federal law: (I) the Forest Service failed to consult on lynx and lynx
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`critical habitat for Amendment 5 I to the Forest Plan; (2) the Forest Service failed
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`to conduct a BA for the Project and to receive the FWS 's concurrence; (2) the
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`Court has already seen the work required on remand is disingenuous. For example, it is difficult
`to construe the agency's failure to conduct a BA-which would ordinarily be considered a
`serious legal error, Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985) overruled on other
`grounds by Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1090 (9th Cir.
`2015)-as anything other than harmless when the agency arrived at the same conclusion either
`way. Similarly, if the newly submitted work is adequate, then any delay, however minor, is
`unnecessarily disruptive to the Forest Service's timeline for Project implementation. Given the
`unique posture of this case, the Court believes it best to analyze Federal Defendants' brief as a
`motion under Rule 60. However, the Court must stress that its expedited review is not a reward
`for Federal Defendants' opportunistic tactics. The Court is troubled that counsel for Federal
`Defendants misrepresented the agencies' need for additional time, exploited the opportunity
`given to them to brief a narrow issue, and put Plaintiffs in the position of responding to the
`adequacy of a substantive issue under a strict word count-a task Plaintiffs accomplished,
`admirably. Finding no unfairness here, the Court will resolve this issue as efficiently as possible.
`In the future, the Court will be increasingly weary of granting counsel's requests that threaten the
`orderly adjudication of cases before it.
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`Case 9:18-cv-00087-DLC Document 93 Filed 06/09/20 Page 4 of 11
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`Forest Service erroneously calculated elk hiding cover; and (3) the Forest Service
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`failed to analyze the Project in an environmental impact statement. (Docs. 1, 41.)
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`Plaintiffs then moved for a preliminary injunction, which this Court granted upon
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`finding that there was a likelihood of success on the merits of Plaintiffs' lynx
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`consultation claim and that irreparable injury was likely to follow in the absence of
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`such an injunction. Native Ecosystems Council v. Marten, 334 F. Supp. 3d 1124,
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`1133 (D. Mont. 2018).
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`Then, on summary judgment, Plaintiffs ultimately conceded that its lynx
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`consultation claim was rendered moot by the agencies' subsequent programmatic
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`analysis and consultation of Amendment 51, (Doc. 85 at 9), yet the Project
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`remained subject to the injunction throughout this litigation. In its Order ruling on
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`the parties' cross-motions for summary judgment, the Court held that the Forest
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`Service had violated the Endangered Species Act ("ESA") and the Administrative
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`Procedures Act ("APA") by failing to complete a BA for wolverine and violated
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`the National Forest Management Act ("NFMA") and APA with its calculation of
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`elk hiding cover. (Id. at 41.) Instead of vacating the record of decision in that
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`Order, the Court granted Federal Defendants' request to provide additional briefing
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`on the appropriate remedy and imposed a supplemental briefing schedule. (Id.)
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`After a five-week extension, Federal Defendants submitted their brief along with a
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`now-completed BA, a letter of concurrence from the FWS, and a SIR with a
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`Case 9:18-cv-00087-DLC Document 93 Filed 06/09/20 Page 5 of 11
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`revised calculation of elk hiding cover. (Docs. 90-1, 90-2, 90-3.) The Court must
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`now decide whether, as a result of the additional work performed by the agencies,
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`the injunction may be lifted.
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`Discussion
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`"A party seeking modification or dissolution of an injunction bears the
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`burden of establishing that a significant change in facts or law warrants revision
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`or dissolution of the injunction." Sharp v. Weston, 233 F.3d 1166, 1170 (9th Cir.
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`2000). A significant change in fact occurs when a party demonstrates its
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`compliance with a court's prior order. Id.
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`A. The Elk Issue
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`The Court determined that the Project violated NFMA and APA because the
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`Forest Service failed to use the entire elk analysis unit as the denominator to
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`determine whether the Project complied with the Forest Plan's two-thirds density
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`standard. (Doc. 85 at 33.) The Forest Service subsequently recalculated post(cid:173)
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`treatment elk hiding cover in the SIR. (Doc. 90-1 at 2.) As with the old
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`calculations, the new calculations demonstrate that the Project amply complies
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`with the Forest Plan's two-thirds standard and reaches substantially similar
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`results.2 Plaintiffs do not object to the content of the SIR. Instead, they argue that
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`2 For example, post treatment coverage under the old method of calculation resulted in 93%
`dense hiding cover in the Buffalo Horn elk analysis unit ("EAU"), 88% in Cabin Creek EAU,
`and 96% in Henry's Mountain EAU. Under the new method, post treatment coverage will result
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`Case 9:18-cv-00087-DLC Document 93 Filed 06/09/20 Page 6 of 11
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`the Forest Service must present the new calculations in a supplemental EA. (Doc.
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`92 at 5.)
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`Although Plaintiffs are correct that non-NEPA documents cannot be used to
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`correct errors in the original NEPA process, Idaho Sporting Congress v.
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`Alexander, 222 F.3d 562, 566-67 (9th Cir. 2000), the Court must also take "due
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`account" of the harmless error rule, Riverbend Farms, Inc. v. Madigan, 958 F.2d
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`1479, 1487 (9th Cir. 1992) (citing 5 U.S.C. § 706). The error here is exceedingly
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`de minimis---in two of the elk analysis units it amounts to a difference in :fractions
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`ofa percentage. Moreover, the Forest Service explains that because the new
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`method arrives at substantially similar results, using the entire elk analysis unit as
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`the denominator does not cause "any other changes to the site-specific analysis
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`completed for the North Hebgen Project." (Doc. 90-1 at 1.) Because the analysis
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`of the Project's impacts on hiding cover remains fully intact despite the very minor
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`change in percentage, it does not make sense to require the agency to release a
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`supplemental draft EA for public comment and then issue a new decision notice
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`and finding ofno significant impact. The error here did not "prevent proper,
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`thorough, and public evaluation of the environmental impact of the Project," Lands
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`Council v. Powell, 395 F.3d 1019, 1037 n.25 (9th Cir. 2004), and is therefore
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`in 93.6% for Buffalo Hom EAU, 87.2% for Cabin Creek EAU, and 94.6% for Henry's Mountain
`EAU. (Doc. 90-1 at2.)
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`Case 9:18-cv-00087-DLC Document 93 Filed 06/09/20 Page 7 of 11
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`harmless. The Court will not require the Forest Service to issue a supplemental
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`draft EA on this basis.
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`B. Wolverine BA
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`Plaintiffs assert that the wolverine BA is inadequate because it asserts an
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`erroneous legal standard, "cites only the 2014 programmatic BA and 2013
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`proposed rule in support" and therefore fails to use the best available science, and
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`is procedurally improper because the Forest Service did not submit the BA in a
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`supplemental draft EA. (Doc. 92 at 8-9.)
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`As an initial matter, the BA is not legally inadequate. Although the Court
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`agrees with Plaintiffs that it is curious that the Forest Service continues to tout that
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`no BA is required for proposed species despite the Court's order expressly ruling
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`to the contrary, the BA is not inadequate for continuing to toe the company line.
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`The point of a BA is to rely on the agency's scientific expertise not its legal
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`insight.
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`Plaintiffs next assert that the BA is deficient because it cites only the 2014
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`programmatic wolverine BA and 2013 proposed rule and thus fails to use the best
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`available science. (Id at 9.) Plaintiffs assert that the "BA does not disclose the
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`threat of the extremely small effective population size, does not disclose how many
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`reproducing females could be impacted by the Project, and does not disclose any
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`kind of threshold for safety in terms of the number of reproducing females that can
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`Case 9:18-cv-00087-DLC Document 93 Filed 06/09/20 Page 8 of 11
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`be negatively impacted before the effective population reaches a point ofno
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`return." (Id. at 10.)
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`Although the BA relies heavily on the 2014 programmatic BA and related
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`science, the BA does not exclusively cite these materials. (See Doc. 90-2 at 13, 14,
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`17.) Nor is it improper for the BA to rely in part on the 2013 proposed rule or the
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`2014 programmatic BA, as the FWS affirmed its prior concurrence of that BA in
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`2016 after the FWS's 2014 withdrawal of the 2013 proposed rule and this Court's
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`vacatur. See Deft. of Wildlife v. Jewell, 176 F. Supp. 3d 975 (D. Mont. 2016).
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`Plaintiffs complain that the BA does "not disclose the threat of the extremely
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`small effective population size," but this is because, as the Forest Service explains,
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`"no systematic population census exists over the entire current range of wolverines
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`in the contiguous United States, so the current population level and trends are not
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`known with any certainty." (Id. at 12.) However, this uncertainty does not stop
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`the BA from discussing the impacts of the Project on fragile population segments.
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`For example, the BA notes the importance of habitat connectivity to the species
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`long-term survival. (Id. at 13.) The BA also notes that human disturbance in
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`occupied wolverine habitat, such as that associated with forest treatment activities,
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`can affect wolverine's habitat use. (Id. at 14.) Nevertheless, the BA does not find
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`that the forest treatment activities contemplated in the Project pose a significant
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`threat to the wolverine's survival because the Project will not cause a significant
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`Case 9:18-cv-00087-DLC Document 93 Filed 06/09/20 Page 9 of 11
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`disruption to the most important kinds of habitat, maternal and primary habitat.
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`(Id. at 16.) Therefore, the BA concludes that the Project activities will not
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`jeopardize wolverine despite the small population size. (See id. at 15-17.)
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`Similarly, it is not fair to say that the BA does not disclose how many
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`reproducing females the Project is expected to affect. Again, the Forest Service is
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`unable, not unwilling, to speak about the population size with any precision. And
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`while the BA acknowledges the importance of genetic diversity, the Project is not
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`anticipated to interfere with reproduction because "wolverine have been
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`documented to persist and reproduce in areas with high levels of human use and
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`disturbance." (Id. at 17 (citing Heinemeyer et al. 2019).) Nor is the Forest Service
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`required to proscribe a population threshold, particularly when the BA explains the
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`relatively insignificant effect the Project (and its cumulative effects) are expected
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`to have on maternal and primary habitat. The BA provides a thorough analysis of
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`the Project's effects on wolverine in support of its conclusion that the Project will
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`"not jeopardize the continued existence of the wolverine." (Id. at 1.)
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`Having concluded the BA is adequate, the Court can find no authority to
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`support Plaintiffs' general contention that post-decisional ESA consultation must
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`be presented in supplemental NEPA form when the agency's receipt ofFWS's
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`concurrence is not a "major federal action significantly affecting the quality of the
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`human environment." San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d
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`581, 646 (9th Cir. 2014) (holding only that an agency's adoption ofa biological
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`opinion is a "major federal action significantly affecting the quality of the human
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`environment" such that the action agency is required to release subsequently
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`prepared ESA documents in a supplemental EIS). Although the federal regulations
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`indicates that "[w]here the consultation or conference has been consolidated with
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`the interagency cooperation procedures required by other statutes such as NEPA or
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`FWCA, the results should be included in the documents required by those
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`statutes," 50 C.F.R. § 402.06, this regulation does not necessarily speak to the
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`circumstances here, post-decisional ESA compliance. Although the Court is well(cid:173)
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`aware ofNEPA's purpose to facilitate informed decision-making, Robertson v.
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`Methow Valley Citizens Council, 490 U.S. 332, 348-49 (1989), the Court is
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`likewise mindful not to interpret NEPA in a way that renders it merely an
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`"obstructionist tactic," Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1090 (9th
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`Cir. 2014). Requiring the Forest Service to submit its post-decisional wolverine
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`BA in a supplemental draft EA-when the original EA already concluded that the
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`Project does not jeopardize wolverine-does not serve any purpose under NEPA.
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`This is not to say that the agency's initial failure to prepare a wolverine BA was
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`not a significant error. This is simply an application of commonsense. In the
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`absence of any authority that expressly requires the Forest Service to resubmit its
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`BA pursuant to NEPA's procedures under these circumstances, the Court will not
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`Case 9:18-cv-00087-DLC Document 93 Filed 06/09/20 Page 11 of 11
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`remand the Project to the agency without some indication of a public value served
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`by that decision.
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`The Court now concludes that the SIR and BA are adequate. The Forest
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`Service has corrected the errors found in the Court's Order. This change in
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`material facts supports amending the Court's prior Order under Rule 60. The
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`Court will not remand and lifts its injunction allowing the North Hebgen Project to
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`go forward.
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`IT IS ORDERED that Defendants' Rule 60 Motion (Doc. 90) is GRANTED.
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`The Forest Service has now fully complied with the Court's Order (Doc. 85).
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`IT IS FURTHER ORDERED that the Court's injunction (Doc. 27) is lifted
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`and the Project may go forward.
`DATED this f_ day of June, 2020.
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`Dana L. Christensen, District Judge
`United States District Court
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