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Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 1 of 19
`
`
`
`
`Timothy M. Bechtold
`BECHTOLD LAW FIRM, PLLC
`PO Box 7051
`Missoula, MT 59807
`406-721-1435
`tim@bechtoldlaw.net
`
`
`Attorneys for Plaintiff
`
`
`Plaintiff,
`
`
`vs.
`
`
`COMPLAINT
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`MISSOULA DIVISION
`
`FLATHEAD-LOLO-BITTERROOT CITIZEN
`)
`TASK FORCE,
`)
`
`)
`
`)
`
`)
`
`)
`UNITED STATES FISH AND WILDLIFE
`)
`SERVICE and UNITED STATES FOREST
`)
`SERVICE,
`)
`
`
`
`1.
`
`
`
`
`
`
`
`))
`
`
`
`Defendants.
`
`This is a civil action for judicial review under the citizen suit provision
`
`of the Administrative Procedure Act (APA) regarding the U.S. Forest
`
`Service’s Environmental Assessment and Decision Notice and Finding
`
`of No Significant Impact for the Soldier-Butler Project (Project) on the
`
`Lolo National Forest (Forest).
`
`2.
`
`Task Force Flathead-Lolo-Bitterroot Citizen Task Force (“Task Force”)
`
`attests that the decisions approving the Project are arbitrary and
`
`
`
`1
`
`

`

`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
`
`with law.
`
`3.
`
`Defendants’ actions or omissions violate the National Environmental
`
`Policy Act (NEPA), 42 U.S.C. §§ 4331 et seq., the National Forest
`
`Management Act (NFMA), 16 U.S.C. § 1600 et seq., and the
`
`Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq.
`
`4.
`
`Task Force requests that the Court set aside the Project pursuant to 5
`
`U.S.C. §706(2)(A) and enjoin implementation of the Project.
`
`5.
`
`Task Force seeks a declaratory judgment, injunctive relief, the award of
`
`costs and expenses of suit, including attorney and expert witness fees
`
`pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, and
`
`such other relief this Court deems just and proper.
`
`I.
`
`JURISDICTION
`
`6.
`
`This action arises under the laws of the United States and involves the
`
`United States as a Defendant. Therefore, this Court has subject matter
`
`jurisdiction over the claims specified in this Complaint pursuant to 28
`
`U.S.C. §§ 1331, 1346.
`
`7.
`
`An actual controversy exists between Task Force and Defendants.
`
`Task Force’s members use and enjoy the Lolo National Forest for
`
`
`
`2
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`

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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 3 of 19
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`
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`hiking, fishing, hunting, camping, photographing scenery and wildlife,
`
`and engaging in other vocational, scientific, spiritual, and recreational
`
`activities. Task Force’s members intend to continue to use and enjoy the
`
`area frequently and on an ongoing basis in the future.
`
`8.
`
`The aesthetic, recreational, scientific, spiritual, and educational
`
`interests of Task Force’s members have been and will be adversely
`
`affected and irreparably injured if Defendants implement the Project.
`
`These are actual, concrete injuries caused by Defendants’ failure to
`
`comply with mandatory duties under NEPA, NFMA, and the APA. The
`
`requested relief would redress these injuries and this Court has the
`
`authority to grant Task Force’s requested relief under 28 U.S.C. §§
`
`2201 & 2202, and 5 U.S.C. §§ 705 & 706.
`
`9.
`
`Task Force submitted timely written comments and objections
`
`concerning the Project in the available administrative review process,
`
`thus it has exhausted administrative remedies. Therefore, the Court
`
`has jurisdiction to review Task Force’s APA claims.
`
`II. VENUE
`
`10. Venue in this case is proper under 28 U.S.C. § 1391(e) and Local Rule
`
`3.3(a)(1). The Soldier-Butler Project is located in the Missoula
`
`
`
`3
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`

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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 4 of 19
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`
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`Division of the United States District Court for the District of
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`Montana.
`
`
`11. Task Force is an incorporated Montana non-profit public interest
`
`III. PARTIES
`
`organization based in Missoula, Montana. Task Force brings this
`
`action on its own behalf and on behalf of its adversely affected
`
`members. Task Force works to protect the natural features and
`
`primitive aspects of the Northern Rockies and specifically the
`
`Flathead, Lolo and Bitterroot National Forests, the native fish and
`
`wildlife and habitat for Threatened and Endangered Species –
`
`including the grizzly bear – for our continued use and enjoyment.
`
`Task Force educates the public on issues affecting our area of concern
`
`and participates in the development of long term plans for National
`
`Forests and grizzly bear recovery.
`
`12. Defendant UNITED STATES FOREST SERVICE (USFS) is an
`
`administrative agency within the U.S. Department of Agriculture.
`
`13. Defendant UNITED STATES FISH AND WILDLIFE SERVICE
`
`(FWS) is an administrative agency within the U.S. Department of
`
`Interior.
`
`
`
`4
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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
`
`14. USFS issued its Final Environmental Assessment for the Soldier-
`
`Butler Project (Soldier-Butler Environmental Assessment) in October
`
`2019.
`
`15. The Forest Service signed the Soldier-Butler Final Decision Notice
`
`and Finding of No Significant Impact (Decision Notice) authorizing
`
`the Project on April 17, 2020.
`
`16. On June 9, 2020, Task Force filed a 60-Day Notice of Intent to Sue
`
`under the ESA’s citizen suit provision, alleging violations of the ESA
`
`related to open road density and survival standards for female grizzly
`
`bears; the Forest Service’s failure to base its decision on the “best
`
`scientific and commercial data;” violations of ESA § 9 prohibitions on
`
`taking; its failure to analyze the nexus between the Ninemile DCA
`
`and the Grizzly Bear Recovery Plan and Conservation Strategy; and
`
`the Forest Service’s failure to consider other important aspects of the
`
`problem, such as the impact of illegal motorized use of
`
`administratively closed roads and a history of road closure violations.
`
`17. USFS reinitiated consultation with FWS on August 10, 2020.
`
`18. FWS issued a Revised Biological Opinion on October 2, 2020.
`
`
`
`5
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`

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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.
`
`20. The Project area encompasses approximately 45,160 acres and is
`
`located about seven miles northwest of Huson, Montana, and extends
`
`from the East Fork of Burnt Fork Creek southwest to Butler Creek and
`
`from the Ninemile Road #412 to the Reservation Divide.
`
`21. The Project includes a portion of the Reservation Divide Inventoried
`
`Roadless Area.
`
`22. The Project area lies entirely in the Lolo National Forest.
`
`23. The Decision Notice implemented a “Selected Action.” The Decision
`
`Notice states that the Selected Action is “a blend of Alternative B and
`
`Alternative C presented in the Environmental Assessment.”
`
`24. The Selected Action implements all of the Proposed Road and Trail
`
`Treatments as analyzed in Alternative B.
`
`25. The Selected Action implements all of the Proposed Vegetation
`
`Treatments analyzed in Alternative B except Unit 21 and Unit 92.
`
`26. The Decision Notice authorizes treatment on 9,975 acres and will
`
`remove 17.5 million board feet of timber from the Project area.
`
`27. The Project will be implemented over an 8-10 year period.
`
`
`
`6
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`

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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 7 of 19
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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
`
`units are continuing to be implemented.
`
`29. The Soldier-Butler Environmental Assessment states, “As currently
`
`mapped and inventoried, the entire road system in the Soldier-Butler
`
`analysis area contains approximately 400 miles of existing and
`
`previously decommissioned road under various jurisdictions (NFS,
`
`State, BLM and private).”
`
`30. The Soldier-Butler Decision Notice states that the Project will
`
`construct 7 miles of new permanent road and 9.4 miles of temporary
`
`roads.
`
`31. The Soldier-Butler Decision Notice states that the Project will also
`
`add 35.4 miles of “undetermined roads” to the road system.
`
`32. The project proposes new permanent construction of the “Pine Creek
`
`Road” which will bisect an area that has provided relatively secure
`
`habitat for bears and other wildlife due to its relative inaccessibility.
`
`33. The Forest Service wildlife biologist stated that even though the Pine
`
`Creek Road will be closed to motorized use, its permanent
`
`construction will have long-lasting effects to the area in terms of
`
`
`
`7
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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 8 of 19
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`providing non-motorized human access into an area that has
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`historically been extremely difficult to access.
`
`34. The Forest Service wildlife biologist stated, “New road construction,
`
`particularly the ‘fire access road’ that would extend into the Pine
`
`Creek and Marion Creek areas, would provide new non-motorized
`
`access into an area that is currently very difficult to access. This road,
`
`plus the commercial thinning that would occur in the area, would
`
`substantially change the character of that area, reducing the sense of
`
`security and undisturbed nature of the area for big game.”
`
`35. The Soldier-Butler Environmental Assessment discloses that there are
`
`144 miles of National Forest Service System Roads in the Project
`
`area.
`
`36. The Soldier-Butler Transportation Report discloses that there are 142
`
`miles of National Forest System Roads in the Project area.
`
`37. The Soldier-Butler Transportation Report discloses that 151 miles of
`
`unauthorized roads exist on the Project area: 137 are “undetermined”
`
`and 14 are “not needed.” All of these roads are currently closed to the
`
`public.
`
`
`
`8
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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 9 of 19
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`38.
`
`“Undetermined roads” are unauthorized roads — roads not included
`
`in the Forest Service Road System and where long-term purpose and
`
`need has yet to be determined.
`
`39.
`
`“Not needed roads” or “Unneeded roads” are unauthorized roads —
`
`roads not included in the Forest Service Road System and determined
`
`to be not needed for long-term management of national forest
`
`resources.
`
`40. The Transportation Report states that the Project will decommission
`
`3.1 miles of National Forest System Roads.
`
`41. The Transportation Report discloses that the Project will add 18.3
`
`miles of roads to the National Forest System.
`
`42. The Decision Notice states that the Project will decommission 100
`
`miles of “Unneeded Roads.”
`
`43. The Decision Notice states that the Project will decommission 4 miles
`
`of undetermined roads that will be reconstructed and used during the
`
`timber sale.
`
`44. The Transportation Report discloses that the Project will “naturally
`
`decommission” 72.9 miles of unauthorized roads.
`
`45. The Transportation Report states that 31.8 miles of roads in the
`
`Project area will be decommissioned at level 3, 4 or 5.
`9
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`

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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 10 of 19
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`46. The Forest Service discloses, “Most of the undetermined roads to be
`
`decommissioned can be decommissioned naturally (level 3-DN); that
`
`is left to grow in and ‘naturalize’ on their own. Of these 3-DN roads,
`
`entrance obliterations may not be necessary due to the condition of the
`
`road (e.g., brushed in, and/or bermed) or the condition of the parent
`
`road (closed, to be decommissioned or stored).”
`
`47. The Decision Notice only authorizes decommissioning of
`
`“undetermined roads” and “unneeded roads.”
`
`48. The Decision Notice does not disclose how many miles of National
`
`Forest System Roads the Project will decommission, if any.
`
`49. Of the 104 miles of Undetermined and Unneeded Roads the Project is
`
`decommissioning, 72.9 miles will receive no treatment.
`
`50. The Project area includes large areas of privately-owned lands.
`
`51. There are 54 miles of private roads on the Project area.
`
`52. Privately owned lands comprise 11.1% of the Project Area and
`
`contain 30.9 miles of open roads.
`
`53. Many of these roads lead to residences and others have administrative
`
`and unauthorized use, crossing over private inholdings and providing
`
`access to clusters of spur roads and high road density.
`
`
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`10
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`

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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 11 of 19
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`54. The Forest Service actively negotiated with private landowners to get
`
`road access across their properties as part of Project Implementation,
`
`thereby making these roads on private lands effectively “open.”
`
`55. The Forest Service excluded open roads on private lands in the Project
`
`Area from its analysis.
`
`56.
`
`In the Project area, 57 miles of road are open to motorized public use
`
`year-round with no restrictions.
`
`57. Another 9 miles are open seasonally from June 15 to October 14.
`
`58. The remaining 39 miles of road in the Project area are either closed to
`
`all public motorized access with physical barriers, such as gates or
`
`berms, or are closed to public motorized access except for
`
`snowmobiles and some administrative use.
`
`59. These roads are available for non-motorized public access.
`
`60. During Project implementation, in addition to temporary road
`
`construction and use, approximately 40.3 miles of roads that are
`
`currently closed to public motorized access would also be used for
`
`Project implementation.
`
`61. The Forest Service wildlife biologist disclosed that, “Use of these
`
`roads during the project will effectively make them the same as open
`
`
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`11
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`

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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.”
`
`62. NCDE-LNF Zone 1-STD-01 requires no net increase in the density of
`
`roads and trails open to public motorized use during the non-denning
`
`season above the baseline condition on National Forest System lands
`
`inside the Ninemile DCA.
`
`63. For Zone 1, including the Ninemile DCA, maximum allowable open
`
`road density is 2mi/mi2.
`
`64. Secure core is just 30.5% of the Project Area and only 12.8% of the
`
`DCA. In the Project Area, OMRD ≥ 1mi/mi2 (0.6km/km2) is 63.8% of
`
`the area and in the DCA 84.6%. The more lethal level of ≥ 2mi/mi2
`
`(1.2km/km2) comprises 67.7% of the Project Area and 78.1% of the
`
`DCA.
`
`65. The baseline condition is blocking occupancy and movement of
`
`grizzly bears from the NCDE to the Cabinet-Yaak and Bitterroot
`
`Recovery Areas.
`
`66. The Revised Biological Opinion of October 2, 2020 states,
`
`“Approximately 104 miles of road will be decommissioned, mostly
`
`via natural regeneration. Since most of these roads have naturally
`
`
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`12
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`

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`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 13 of 19
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`
`
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`revegetated and do not receive public access, no ground work will
`
`likely be needed. Administratively removing these roads from the
`
`system would not result in direct beneficial effects on the ground.”
`
`67. The Project area overlaps with the Frenchtown Face Ecosystem
`
`Restoration Project area (Frenchtown Face Project).
`
`68. The Frenchtown Face Project was approved in 2006.
`
`69. The Frenchtown Face Project includes 1,641 acres of prescribed
`
`burning of harvest and maintenance units and 615 acres of thinning
`
`and prescribed burning which have not yet been implemented.
`
`70. The Frenchtown Face Project authorized decommissioning of 115
`
`miles of roads, stating that “most of the road decommissioning,
`
`however, (approximately 110 of the 114.7 miles) will receive ‘Level
`
`III’ closures, which typically involve deep ripping of the road surface,
`
`drainage structure removal and restoration, and entrance closures
`
`through boulders.”
`
`71. The Soldier-Butler Environmental Assessment discloses that within
`
`the area where the Soldier-Butler and Frenchtown Face Projects
`
`overlap (“overlap area”) are 85 miles of roads that the Frenchtown
`
`Face Project previously authorized to be decommissioned.
`
`
`
`13
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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
`
`miles of roads in the overlap area have been decommissioned—70
`
`miles out of the 85 miles have not yet been decommissioned.
`
`73.
`
`Instead of decommissioning the remaining 70 miles the Frenchtown
`
`Face Project authorizes in the overlap area, the Soldier-Butler Project
`
`will only decommission 34 miles of roads within the overlap area.
`
`74. Neither the Soldier-Butter Environmental Assessment nor Decision
`
`Notice disclose what level of decommissioning these 34 miles of road
`
`in the overlap area will receive.
`
`75. The Forest Service states that the decision to reverse the Frenchtown
`
`Face Project’s decision to decommission the 70 miles are “due to
`
`uncounted for pre-existing rights on roads, the need for them during
`
`implementation of Soldier-Butler Project, and/or because some of
`
`these roads are in the wildland-urban interface and are needed for
`
`ingress and egress for public and firefighter safety.”
`
`76. The Forest Service does not adequately discuss or disclose the total
`
`number of roads that the Soldier-Butler Project and the Frenchtown
`
`Face Project will either add to or remove from the National Forest
`
`Road System.
`
`
`
`14
`
`

`

`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 15 of 19
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`77. The Conservation Strategy states that the moving window GIS
`
`analysis procedure is “infeasible” in Zone 1 due to areas of private
`
`land where road information is incomplete or unavailable. The EA
`
`repeats this claim.
`
`78. The necessary information was in fact available and USFS has a duty
`
`to obtain the information for the analysis. Even incomplete
`
`information is required to be used when it represents “the best
`
`available scientific and commercial data,” and the failure to use this
`
`data is arbitrary and capricious.
`
`V. CLAIMS FOR RELIEF
`
`COUNT 1
`
`The Forest Service’s inadequate impacts analysis violates NEPA and
`
`the APA.
`
`79. All previous paragraphs are incorporated by reference.
`
`80. The Forest Service violated NEPA by failing to examine the
`
`cumulative impacts of the Soldier-Butler Project and the Frenchtown
`
`Face Project.
`
`81. NEPA requires federal agencies’ environmental analysis to consider
`
`“any adverse environmental effects which cannot be avoided.” 42
`
`
`
`15
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`

`

`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 16 of 19
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`U.S.C. §4332(2)(C)(ii). When several actions may have cumulative or
`
`synergistic environmental impacts, the Forest Service must consider
`
`these actions together and prepare a comprehensive environmental
`
`analysis.
`
`82. Agencies are required to take a hard look at direct, indirect and
`
`cumulative impacts of a proposed action. 40 C.F.R. § 1508.25(c).
`
`83. Direct impacts are “caused by the action and occur at the same place
`
`and time.” Id. § 1508.8(a). Indirect impacts are “caused by the action
`
`and are later in time or further removed in distance but are still
`
`reasonably foreseeable.” Id. § 1508.8(b).
`
`84. Cumulative impacts are “the impacts[s] on the environment which
`
`result[] from the incremental impact of the action when added to other
`
`past, present and reasonably foreseeable future actions, regardless of
`
`what agency (Federal or non-Federal) or person undertakes such
`
`actions.” Id.§ 1508.7.
`
`85. The Forest Service conducted an inadequate cumulative impacts
`
`analysis because it failed to consider the combined effects of the
`
`Frenchtown Face Project and Soldier-Butler Project, specifically the
`
`decision to reverse the Frenchtown Face Project’s decision to
`
`decommission 70 miles of road in the Soldier-Butler Project area.
`16
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`

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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
`
`on mitigation and restoration aspects of the Frenchtown Face Project;
`
`therefore, its Soldier-Butler analysis failed to adequately comply with
`
`NEPA and the APA by failing to consider an important aspect of the
`
`Project. .
`
`COUNT 2
`
`The Revised Biological Opinion is inadequate and therefore arbitrary,
`
`capricious, and otherwise not in accordance with law, in violation of
`
`the APA.
`
`87. All previous paragraphs are incorporated by reference.
`
`88. FWS must prepare a biological opinion for an agency action that is
`
`likely to adversely affect the species listed under the ESA.
`
`89. Biological opinions must apply the best available science and cannot
`
`ignore available information.
`
`90. The Forest Service concluded in its Project Biological Assessment
`
`that the Project would likely affect grizzly bears.
`
`91. FWS provided a Revised Biological Opinion for the Project on
`
`October 2, 2020.
`
`
`
`17
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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
`
`the Project’s effects on grizzly bears.
`
`93. Regulations require a biological opinion to include “a detailed
`
`discussion of the effects of the action.” 50 CFR §404.14(h)(2).
`
`94. The Revised Biological Opinion for the Project uses methods and
`
`information that are not based on the best scientific and commercial
`
`data and excluded the best available scientific information on road
`
`density and secure core habitat.
`
`95. Accordingly, the Revised Biological Opinion for the Project is
`
`arbitrary and capricious and not in accordance with the ESA, in
`
`violation of the APA.
`
`
`
`VI. RELIEF REQUESTED
`
`For all of the above-stated reasons, Task Force requests that this Court
`
`award the following relief:
`
`A. Declare that the Project, as approved, violates NEPA, NFMA, and the
`
`APA;
`
`B.
`
`Enjoin implementation of the entire Project;
`
`
`
`18
`
`

`

`Case 9:20-cv-00157-DLC Document 1 Filed 10/26/20 Page 19 of 19
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`
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`C. Vacate the Project decision and remand the matter to the agencies
`
`until such time as the agencies demonstrate to this Court that they
`
`have adequately complied with the law;
`
`D.
`
`Set aside the Project Decision Notice and Finding of No Significant
`
`Impact;
`
`E. Award Task Force its costs, expenses, expert witness fees, and
`
`reasonable attorney fees under EAJA; and
`
`F.
`
`Grant Task Force any such further relief as may be just, proper, and
`
`equitable.
`
`Respectfully submitted this 26th day of October, 2020.
`
`/s/Timothy Bechtold
`Bechtold Law Firm, PLLC
`
`Attorney for Task Force
`
`19
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`
`
`
`
`
`
`

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