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`
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`Timothy M. Bechtold
`BECHTOLD LAW FIRM, PLLC
`PO Box 7051
`Missoula, MT 59807
`406-721-1435
`tim@bechtoldlaw.net
`
`
`Attorneys for Plaintiff
`
`
`Plaintiff,
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`vs.
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`COMPLAINT
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`MISSOULA DIVISION
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`FLATHEAD-LOLO-BITTERROOT CITIZEN
`)
`TASK FORCE,
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`)
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`)
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`)
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`UNITED STATES FISH AND WILDLIFE
`)
`SERVICE and UNITED STATES FOREST
`)
`SERVICE,
`)
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`1.
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`))
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`
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`Defendants.
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`This is a civil action for judicial review under the citizen suit provision
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`of the Administrative Procedure Act (APA) regarding the U.S. Forest
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`Service’s Environmental Assessment and Decision Notice and Finding
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`of No Significant Impact for the Soldier-Butler Project (Project) on the
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`Lolo National Forest (Forest).
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`2.
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`Task Force Flathead-Lolo-Bitterroot Citizen Task Force (“Task Force”)
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`attests that the decisions approving the Project are arbitrary and
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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 2 of 19
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`capricious, an abuse of discretion, and/or otherwise not in accordance
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`with law.
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`3.
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`Defendants’ actions or omissions violate the National Environmental
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`Policy Act (NEPA), 42 U.S.C. §§ 4331 et seq., the National Forest
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`Management Act (NFMA), 16 U.S.C. § 1600 et seq., and the
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`Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq.
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`4.
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`Task Force requests that the Court set aside the Project pursuant to 5
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`U.S.C. §706(2)(A) and enjoin implementation of the Project.
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`5.
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`Task Force seeks a declaratory judgment, injunctive relief, the award of
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`costs and expenses of suit, including attorney and expert witness fees
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`pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, and
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`such other relief this Court deems just and proper.
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`I.
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`JURISDICTION
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`6.
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`This action arises under the laws of the United States and involves the
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`United States as a Defendant. Therefore, this Court has subject matter
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`jurisdiction over the claims specified in this Complaint pursuant to 28
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`U.S.C. §§ 1331, 1346.
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`7.
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`An actual controversy exists between Task Force and Defendants.
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`Task Force’s members use and enjoy the Lolo National Forest for
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`hiking, fishing, hunting, camping, photographing scenery and wildlife,
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`and engaging in other vocational, scientific, spiritual, and recreational
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`activities. Task Force’s members intend to continue to use and enjoy the
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`area frequently and on an ongoing basis in the future.
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`8.
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`The aesthetic, recreational, scientific, spiritual, and educational
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`interests of Task Force’s members have been and will be adversely
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`affected and irreparably injured if Defendants implement the Project.
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`These are actual, concrete injuries caused by Defendants’ failure to
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`comply with mandatory duties under NEPA, NFMA, and the APA. The
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`requested relief would redress these injuries and this Court has the
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`authority to grant Task Force’s requested relief under 28 U.S.C. §§
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`2201 & 2202, and 5 U.S.C. §§ 705 & 706.
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`9.
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`Task Force submitted timely written comments and objections
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`concerning the Project in the available administrative review process,
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`thus it has exhausted administrative remedies. Therefore, the Court
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`has jurisdiction to review Task Force’s APA claims.
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`II. VENUE
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`10. Venue in this case is proper under 28 U.S.C. § 1391(e) and Local Rule
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`3.3(a)(1). The Soldier-Butler Project is located in the Missoula
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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 4 of 19
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`Division of the United States District Court for the District of
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`Montana.
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`11. Task Force is an incorporated Montana non-profit public interest
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`III. PARTIES
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`organization based in Missoula, Montana. Task Force brings this
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`action on its own behalf and on behalf of its adversely affected
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`members. Task Force works to protect the natural features and
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`primitive aspects of the Northern Rockies and specifically the
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`Flathead, Lolo and Bitterroot National Forests, the native fish and
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`wildlife and habitat for Threatened and Endangered Species –
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`including the grizzly bear – for our continued use and enjoyment.
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`Task Force educates the public on issues affecting our area of concern
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`and participates in the development of long term plans for National
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`Forests and grizzly bear recovery.
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`12. Defendant UNITED STATES FOREST SERVICE (USFS) is an
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`administrative agency within the U.S. Department of Agriculture.
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`13. Defendant UNITED STATES FISH AND WILDLIFE SERVICE
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`(FWS) is an administrative agency within the U.S. Department of
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`Interior.
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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 5 of 19
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`IV. FACTUAL ALLEGATIONS
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`14. USFS issued its Final Environmental Assessment for the Soldier-
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`Butler Project (Soldier-Butler Environmental Assessment) in October
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`2019.
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`15. The Forest Service signed the Soldier-Butler Final Decision Notice
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`and Finding of No Significant Impact (Decision Notice) authorizing
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`the Project on April 17, 2020.
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`16. On June 9, 2020, Task Force filed a 60-Day Notice of Intent to Sue
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`under the ESA’s citizen suit provision, alleging violations of the ESA
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`related to open road density and survival standards for female grizzly
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`bears; the Forest Service’s failure to base its decision on the “best
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`scientific and commercial data;” violations of ESA § 9 prohibitions on
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`taking; its failure to analyze the nexus between the Ninemile DCA
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`and the Grizzly Bear Recovery Plan and Conservation Strategy; and
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`the Forest Service’s failure to consider other important aspects of the
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`problem, such as the impact of illegal motorized use of
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`administratively closed roads and a history of road closure violations.
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`17. USFS reinitiated consultation with FWS on August 10, 2020.
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`18. FWS issued a Revised Biological Opinion on October 2, 2020.
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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 6 of 19
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`19. The Project is located in the Ninemile Ranger District of the Lolo
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`National Forest.
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`20. The Project area encompasses approximately 45,160 acres and is
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`located about seven miles northwest of Huson, Montana, and extends
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`from the East Fork of Burnt Fork Creek southwest to Butler Creek and
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`from the Ninemile Road #412 to the Reservation Divide.
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`21. The Project includes a portion of the Reservation Divide Inventoried
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`Roadless Area.
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`22. The Project area lies entirely in the Lolo National Forest.
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`23. The Decision Notice implemented a “Selected Action.” The Decision
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`Notice states that the Selected Action is “a blend of Alternative B and
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`Alternative C presented in the Environmental Assessment.”
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`24. The Selected Action implements all of the Proposed Road and Trail
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`Treatments as analyzed in Alternative B.
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`25. The Selected Action implements all of the Proposed Vegetation
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`Treatments analyzed in Alternative B except Unit 21 and Unit 92.
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`26. The Decision Notice authorizes treatment on 9,975 acres and will
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`remove 17.5 million board feet of timber from the Project area.
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`27. The Project will be implemented over an 8-10 year period.
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`28. Several units in the Project area have been logged, thinned, and/or
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`burned in the past decade, and some hand thinning and underburning
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`units are continuing to be implemented.
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`29. The Soldier-Butler Environmental Assessment states, “As currently
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`mapped and inventoried, the entire road system in the Soldier-Butler
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`analysis area contains approximately 400 miles of existing and
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`previously decommissioned road under various jurisdictions (NFS,
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`State, BLM and private).”
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`30. The Soldier-Butler Decision Notice states that the Project will
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`construct 7 miles of new permanent road and 9.4 miles of temporary
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`roads.
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`31. The Soldier-Butler Decision Notice states that the Project will also
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`add 35.4 miles of “undetermined roads” to the road system.
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`32. The project proposes new permanent construction of the “Pine Creek
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`Road” which will bisect an area that has provided relatively secure
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`habitat for bears and other wildlife due to its relative inaccessibility.
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`33. The Forest Service wildlife biologist stated that even though the Pine
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`Creek Road will be closed to motorized use, its permanent
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`construction will have long-lasting effects to the area in terms of
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`providing non-motorized human access into an area that has
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`historically been extremely difficult to access.
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`34. The Forest Service wildlife biologist stated, “New road construction,
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`particularly the ‘fire access road’ that would extend into the Pine
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`Creek and Marion Creek areas, would provide new non-motorized
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`access into an area that is currently very difficult to access. This road,
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`plus the commercial thinning that would occur in the area, would
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`substantially change the character of that area, reducing the sense of
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`security and undisturbed nature of the area for big game.”
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`35. The Soldier-Butler Environmental Assessment discloses that there are
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`144 miles of National Forest Service System Roads in the Project
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`area.
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`36. The Soldier-Butler Transportation Report discloses that there are 142
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`miles of National Forest System Roads in the Project area.
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`37. The Soldier-Butler Transportation Report discloses that 151 miles of
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`unauthorized roads exist on the Project area: 137 are “undetermined”
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`and 14 are “not needed.” All of these roads are currently closed to the
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`public.
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`38.
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`“Undetermined roads” are unauthorized roads — roads not included
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`in the Forest Service Road System and where long-term purpose and
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`need has yet to be determined.
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`39.
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`“Not needed roads” or “Unneeded roads” are unauthorized roads —
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`roads not included in the Forest Service Road System and determined
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`to be not needed for long-term management of national forest
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`resources.
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`40. The Transportation Report states that the Project will decommission
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`3.1 miles of National Forest System Roads.
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`41. The Transportation Report discloses that the Project will add 18.3
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`miles of roads to the National Forest System.
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`42. The Decision Notice states that the Project will decommission 100
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`miles of “Unneeded Roads.”
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`43. The Decision Notice states that the Project will decommission 4 miles
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`of undetermined roads that will be reconstructed and used during the
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`timber sale.
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`44. The Transportation Report discloses that the Project will “naturally
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`decommission” 72.9 miles of unauthorized roads.
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`45. The Transportation Report states that 31.8 miles of roads in the
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`Project area will be decommissioned at level 3, 4 or 5.
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`46. The Forest Service discloses, “Most of the undetermined roads to be
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`decommissioned can be decommissioned naturally (level 3-DN); that
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`is left to grow in and ‘naturalize’ on their own. Of these 3-DN roads,
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`entrance obliterations may not be necessary due to the condition of the
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`road (e.g., brushed in, and/or bermed) or the condition of the parent
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`road (closed, to be decommissioned or stored).”
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`47. The Decision Notice only authorizes decommissioning of
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`“undetermined roads” and “unneeded roads.”
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`48. The Decision Notice does not disclose how many miles of National
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`Forest System Roads the Project will decommission, if any.
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`49. Of the 104 miles of Undetermined and Unneeded Roads the Project is
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`decommissioning, 72.9 miles will receive no treatment.
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`50. The Project area includes large areas of privately-owned lands.
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`51. There are 54 miles of private roads on the Project area.
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`52. Privately owned lands comprise 11.1% of the Project Area and
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`contain 30.9 miles of open roads.
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`53. Many of these roads lead to residences and others have administrative
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`and unauthorized use, crossing over private inholdings and providing
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`access to clusters of spur roads and high road density.
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`54. The Forest Service actively negotiated with private landowners to get
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`road access across their properties as part of Project Implementation,
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`thereby making these roads on private lands effectively “open.”
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`55. The Forest Service excluded open roads on private lands in the Project
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`Area from its analysis.
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`56.
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`In the Project area, 57 miles of road are open to motorized public use
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`year-round with no restrictions.
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`57. Another 9 miles are open seasonally from June 15 to October 14.
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`58. The remaining 39 miles of road in the Project area are either closed to
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`all public motorized access with physical barriers, such as gates or
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`berms, or are closed to public motorized access except for
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`snowmobiles and some administrative use.
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`59. These roads are available for non-motorized public access.
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`60. During Project implementation, in addition to temporary road
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`construction and use, approximately 40.3 miles of roads that are
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`currently closed to public motorized access would also be used for
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`Project implementation.
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`61. The Forest Service wildlife biologist disclosed that, “Use of these
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`roads during the project will effectively make them the same as open
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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 12 of 19
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`roads in terms of the effects to grizzly bears, which are primarily
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`displaced due to disturbance.”
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`62. NCDE-LNF Zone 1-STD-01 requires no net increase in the density of
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`roads and trails open to public motorized use during the non-denning
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`season above the baseline condition on National Forest System lands
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`inside the Ninemile DCA.
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`63. For Zone 1, including the Ninemile DCA, maximum allowable open
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`road density is 2mi/mi2.
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`64. Secure core is just 30.5% of the Project Area and only 12.8% of the
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`DCA. In the Project Area, OMRD ≥ 1mi/mi2 (0.6km/km2) is 63.8% of
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`the area and in the DCA 84.6%. The more lethal level of ≥ 2mi/mi2
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`(1.2km/km2) comprises 67.7% of the Project Area and 78.1% of the
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`DCA.
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`65. The baseline condition is blocking occupancy and movement of
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`grizzly bears from the NCDE to the Cabinet-Yaak and Bitterroot
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`Recovery Areas.
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`66. The Revised Biological Opinion of October 2, 2020 states,
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`“Approximately 104 miles of road will be decommissioned, mostly
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`via natural regeneration. Since most of these roads have naturally
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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 13 of 19
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`revegetated and do not receive public access, no ground work will
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`likely be needed. Administratively removing these roads from the
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`system would not result in direct beneficial effects on the ground.”
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`67. The Project area overlaps with the Frenchtown Face Ecosystem
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`Restoration Project area (Frenchtown Face Project).
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`68. The Frenchtown Face Project was approved in 2006.
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`69. The Frenchtown Face Project includes 1,641 acres of prescribed
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`burning of harvest and maintenance units and 615 acres of thinning
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`and prescribed burning which have not yet been implemented.
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`70. The Frenchtown Face Project authorized decommissioning of 115
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`miles of roads, stating that “most of the road decommissioning,
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`however, (approximately 110 of the 114.7 miles) will receive ‘Level
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`III’ closures, which typically involve deep ripping of the road surface,
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`drainage structure removal and restoration, and entrance closures
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`through boulders.”
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`71. The Soldier-Butler Environmental Assessment discloses that within
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`the area where the Soldier-Butler and Frenchtown Face Projects
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`overlap (“overlap area”) are 85 miles of roads that the Frenchtown
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`Face Project previously authorized to be decommissioned.
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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 14 of 19
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`72. The Soldier-Butler Environmental Assessment discloses that only 15
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`miles of roads in the overlap area have been decommissioned—70
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`miles out of the 85 miles have not yet been decommissioned.
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`73.
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`Instead of decommissioning the remaining 70 miles the Frenchtown
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`Face Project authorizes in the overlap area, the Soldier-Butler Project
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`will only decommission 34 miles of roads within the overlap area.
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`74. Neither the Soldier-Butter Environmental Assessment nor Decision
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`Notice disclose what level of decommissioning these 34 miles of road
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`in the overlap area will receive.
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`75. The Forest Service states that the decision to reverse the Frenchtown
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`Face Project’s decision to decommission the 70 miles are “due to
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`uncounted for pre-existing rights on roads, the need for them during
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`implementation of Soldier-Butler Project, and/or because some of
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`these roads are in the wildland-urban interface and are needed for
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`ingress and egress for public and firefighter safety.”
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`76. The Forest Service does not adequately discuss or disclose the total
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`number of roads that the Soldier-Butler Project and the Frenchtown
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`Face Project will either add to or remove from the National Forest
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`Road System.
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`77. The Conservation Strategy states that the moving window GIS
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`analysis procedure is “infeasible” in Zone 1 due to areas of private
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`land where road information is incomplete or unavailable. The EA
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`repeats this claim.
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`78. The necessary information was in fact available and USFS has a duty
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`to obtain the information for the analysis. Even incomplete
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`information is required to be used when it represents “the best
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`available scientific and commercial data,” and the failure to use this
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`data is arbitrary and capricious.
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`V. CLAIMS FOR RELIEF
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`COUNT 1
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`The Forest Service’s inadequate impacts analysis violates NEPA and
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`the APA.
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`79. All previous paragraphs are incorporated by reference.
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`80. The Forest Service violated NEPA by failing to examine the
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`cumulative impacts of the Soldier-Butler Project and the Frenchtown
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`Face Project.
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`81. NEPA requires federal agencies’ environmental analysis to consider
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`“any adverse environmental effects which cannot be avoided.” 42
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`U.S.C. §4332(2)(C)(ii). When several actions may have cumulative or
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`synergistic environmental impacts, the Forest Service must consider
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`these actions together and prepare a comprehensive environmental
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`analysis.
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`82. Agencies are required to take a hard look at direct, indirect and
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`cumulative impacts of a proposed action. 40 C.F.R. § 1508.25(c).
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`83. Direct impacts are “caused by the action and occur at the same place
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`and time.” Id. § 1508.8(a). Indirect impacts are “caused by the action
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`and are later in time or further removed in distance but are still
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`reasonably foreseeable.” Id. § 1508.8(b).
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`84. Cumulative impacts are “the impacts[s] on the environment which
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`result[] from the incremental impact of the action when added to other
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`past, present and reasonably foreseeable future actions, regardless of
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`what agency (Federal or non-Federal) or person undertakes such
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`actions.” Id.§ 1508.7.
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`85. The Forest Service conducted an inadequate cumulative impacts
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`analysis because it failed to consider the combined effects of the
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`Frenchtown Face Project and Soldier-Butler Project, specifically the
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`decision to reverse the Frenchtown Face Project’s decision to
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`decommission 70 miles of road in the Soldier-Butler Project area.
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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 17 of 19
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`86. The Forest Service neglected to analyze its failure to follow through
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`on mitigation and restoration aspects of the Frenchtown Face Project;
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`therefore, its Soldier-Butler analysis failed to adequately comply with
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`NEPA and the APA by failing to consider an important aspect of the
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`Project. .
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`COUNT 2
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`The Revised Biological Opinion is inadequate and therefore arbitrary,
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`capricious, and otherwise not in accordance with law, in violation of
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`the APA.
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`87. All previous paragraphs are incorporated by reference.
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`88. FWS must prepare a biological opinion for an agency action that is
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`likely to adversely affect the species listed under the ESA.
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`89. Biological opinions must apply the best available science and cannot
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`ignore available information.
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`90. The Forest Service concluded in its Project Biological Assessment
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`that the Project would likely affect grizzly bears.
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`91. FWS provided a Revised Biological Opinion for the Project on
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`October 2, 2020.
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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 18 of 19
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`92. The Revised Biological Opinion for the Project does not address all
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`the Project’s effects on grizzly bears.
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`93. Regulations require a biological opinion to include “a detailed
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`discussion of the effects of the action.” 50 CFR §404.14(h)(2).
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`94. The Revised Biological Opinion for the Project uses methods and
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`information that are not based on the best scientific and commercial
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`data and excluded the best available scientific information on road
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`density and secure core habitat.
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`95. Accordingly, the Revised Biological Opinion for the Project is
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`arbitrary and capricious and not in accordance with the ESA, in
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`violation of the APA.
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`VI. RELIEF REQUESTED
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`For all of the above-stated reasons, Task Force requests that this Court
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`award the following relief:
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`A. Declare that the Project, as approved, violates NEPA, NFMA, and the
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`APA;
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`B.
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`Enjoin implementation of the entire Project;
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`C. Vacate the Project decision and remand the matter to the agencies
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`until such time as the agencies demonstrate to this Court that they
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`have adequately complied with the law;
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`D.
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`Set aside the Project Decision Notice and Finding of No Significant
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`Impact;
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`E. Award Task Force its costs, expenses, expert witness fees, and
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`reasonable attorney fees under EAJA; and
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`F.
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`Grant Task Force any such further relief as may be just, proper, and
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`equitable.
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`Respectfully submitted this 26th day of October, 2020.
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`/s/Timothy Bechtold
`Bechtold Law Firm, PLLC
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`Attorney for Task Force
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