DONALD W. MOLLOY, District Judge.
Plaintiffs Swan View Coalition, et al., ("Plaintiffs") bring this action seeking judicial review under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, of agency action by the United States Forest Service concerning the Moose Post-Fire Project in the Flathead National Forest. Plaintiffs' First Amended Complaint alleges that the Service acted in violation of the Endangered Species Act ("ESA"), 16 U.S.C. § 1533 et seq.; the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., when it issued an Amended Record of Decision approving the Moose Post-Fire Project following remand from this Court. Pending before the Court are cross-motions for summary judgment on all claims.
It is necessary at the outset to address this Court's prior Order on the Federal Defendants' motion to dismiss. The Federal Defendants
In my view this proposition was correct and I agreed that agency action amending the Forest Plan was a prerequisite for any ESA claim, stating, "The issue is whether the standard in the [Amended Record of Decision] is a forest-wide standard or something else." Doc. No. 15 at 10. I looked to the Ninth Circuit Memorandum to resolve the question, and interpreted the Memorandum's remand order to require the Forest Service "to explain, and to that extent amend, a portion of the Forest Plan." Id. at 11. The Order continues, "This creates not a one-off clarification, but instead dictates how the competing land uses mandate in the Forest Plan is understood for future projects too. Simply put, this is a `Forest-wide standard.'" Id. Based on that reasoning, the Plaintiffs were granted leave to amend their ESA claim.
Despite stating in stark terms that the Forest Service's action constitutes an amendment to the Forest Plan, my Order included two footnotes acknowledging points that undermine its conclusion. In one footnote, the Court noted that "[t]here is some equivocal language in the Ninth Circuit's Memorandum." Doc. No. 15 at 11 n. 1. The second footnote concedes that the Forest Service's Amended Record of Decision does not purport to amend the Forest Plan or state that it will be applicable to future projects on a programmatic basis. Id. at 12 n. 2.
As is explained in greater detail in the analysis below, the reasoning employed by the Court in the Order on the Defendants
It is evident that the Plaintiffs relied on the reasoning of the Order on the Federal Defendants' motion to dismiss in crafting their summary judgment arguments. Those arguments fail for the reasons stated below. Even so, fairness dictates that the Plaintiff's have an opportunity to reformulate their summary judgment arguments in light of this Order, if they so choose. Plaintiffs shall have seven days from the date of this Order in which to file written notice of any intent to file a new summary judgment motion. If such notice is given, the Court will issue a new summary judgment briefing schedule. If Plaintiffs do not provide such notice within seven days, the Court will enter judgment consistent with this Order.
The Forest Service adopted the Flathead National Forest Plan on January 22, 1986. Swan View Coalition v. Barbouletos, 2006 WL 6198486 (D.Mont. Dec. 12, 2006) at *2. In 1989, the Service added Amendment 9 to the Forest Plan, which incorporates into the Forest Plan the Interagency Grizzly Bear Guidelines promulgated in 1986. Id. at *3. For the purposes of this case, the noteworthy feature of Amendment 9 is the inclusion of specific descriptions and management direction associated with each of the Management Situation designations assigned to areas of the Forest populated by the grizzly bear, which is listed as threatened under ESA. Id. at *3-*4.
In response to litigation challenging the Forest Plan's ESA compliance with regard to the grizzly bear, the Service added
In the aftermath of the 71,000-acre Moose Fire, roughly half of which burned on Flathead National Forest land, the Forest Service chose to pursue the Moose Post-Fire Project (the "Moose Project") to reduce tree mortality caused by bark beetles, recover merchantable wood fiber, and reduce future fuel accumulation. Swan View, 2006 WL 6198486 at *7-*8. The Moose Project also includes provisions relating to travel management for certain Subunits within the Forest. Id. at *8-*9. Specifically, the Moose Project establishes travel management rules for the Werner Creek Subunit and Lower Big Creek Subunit that, while improving on the status quo, are not in compliance with the 19/19/68 standards called for in Amendment 19 of the Forest Plan.
The Moose Project includes two project specific amendments to the Forest Plan that excuse the failure to meet the 19/19/68 standards in the Werner Creek and Lower Big Creek Subunits. Swan View, 2006 WL 6198486 at *9. One amendment relaxes the standards in the Werner Creek Subunit to 29/19/63, while the other allows the Service to ignore the ten retained culverts (three in the Werner Creek Subunit and seven in the Lower Big Creek Subunit) when calculating road densities for Amendment 19 compliance. Id. After consultation, the Fish and Wildlife Service issued "no jeopardy" biological opinions for both grizzly bears and bull trout in connection with the Moose Project.
A coalition of environmental advocacy groups challenged the Moose Project in a case filed in this Court in 2003, alleging violations of NEPA and NFMA against the Forest Service and an ESA violation against the Fish and Wildlife Service. Swan View, 2006 WL 6198486 at *11-*13. This Court granted summary judgment for the Federal Defendants on all claims, id. at *24, but for purposes of this analysis the focus is on the NFMA claim.
Based on those provisions, the Court concluded that the Forest Plan's "compete" provision does not require that the needs of the grizzly be promoted to the exclusion of all other uses, but rather that other uses may be allowed provided they do not "manifest a demonstrable negative effect on grizzlies or their habitat." Swan View, 2006 WL 6198486 at *22. The Court then relied on the administrative record's analysis of the likely effects of the Moose Project to conclude that the project-specific amendments are not so harmful to grizzlies that they are "competing" uses under the Forest Plan. Id. at *23-*24. Accordingly, the Court rejected the Plaintiffs' NFMA claim and granted summary judgment in favor of the Federal Defendants. Id. at *24.
The Plaintiffs appealed this Court's summary judgment ruling in Swan View on the limited ground that the Court erred in rejecting the NFMA claim based on
The appellate panel vacated this Court's judgment and remanded the case with the following instructions:
Swan View, 307 Fed.Appx. at 51.
Following the remand, the Forest Service issued an Amended Record of Decision in April of 2009 in which the Forest Supervisor re-affirmed the original Record of Decision implementing the Moose Project. AR MII-1 at 1 of 6.
The Supervisor identified the relevant standard by referencing the sentence containing the "compete" provision as well as the subsequent sentence, resulting in the following quote from Amendment 9: "Management decisions will favor the needs of the grizzly bear when grizzly habitat and other land use values compete. Land uses which can affect grizzlies and/or their habitat will be made compatible with grizzly needs or such uses will be disallowed or eliminated." AR MII-27 at 8 of 108. The Supervisor implied that she views the terms "compete" and "compatible" as two sides of the same standard, such that multiple uses do not compete so long as they are compatible with grizzly bear needs. AR MII-1 at 3 of 6. The Supervisor then quoted the following language from Amendment 9's statement of Forest Service grizzly bear management policy:
AR MII-1 at 3 of 6 (quoting Amendment 9, AR MII-27 at 7 of 108).
The Supervisor also relied on specific management directions in Amendment 9 for maintaining and improving habitat that instruct the Forest Service to consult with the Fish and Wildlife Service as necessary and to, "[w]ith full knowledge of the Biological Opinion, recommend project or land use modification which will provide compatibility between grizzly bears and other land uses without degrading conditions for grizzlies." AR MII-27 at 11 of 108.
From these citations to the Interagency Grizzly Bear Guidelines, the Supervisor reached two conclusions: (1) Amendment 9 allows for multiple uses in grizzly bear habitat, including recreational uses, and (2) the proper reference point for assessing whether another use competes with or is compatible with the needs of grizzlies is the entire project as submitted for consultation to Fish and Wildlife Service, not the discrete harmful aspects of the project. AR MII-1 at 3 of 6. Based on those conclusions, the Amended Record of Decision adopted the following interpretation of Amendment 9's compete provision:
Id.
The Supervisor proceeded to apply her interpretation to the Moose Project, and concluded that the action as a whole is compatible with the needs of grizzly bears and therefore consistent with Amendment 9 to the Forest Plan. AR MII-1 at 3-4 of 6. In reaching this conclusion the Supervisor emphasized the project's significant net improvement in grizzly bear habitat. Id. at 4 of 6. The Supervisor also noted that a recent study found current the current Northern Continental Divide Ecosystem grizzly population is more than double what was estimated at the time of the original Moose Project Record of Decision. Id. at 4 of 6. According to the Supervisor's reasoning, given that previous travel management rules did not restrict the growth of the grizzly population, the more favorable rules established by the Moose Project are all the more compatible with the needs of the bear. Id. at 6 of 6.
At no point in the Amended Record of Decision does the Supervisor discuss amending the Forest Plan or imply that her decision authorizes a programmatic amendment.
The Amended Record of Decision has now been challenged in this case by a coalition of Plaintiffs comprising most of the litigants involved in the previous case, led once again by the Swan View Coalition. The Plaintiffs allege claims under NFMA, NEPA and the ESA. Count I alleges that the Amended Record of Decision fails to comply with the Forest Plan in violation of NFMA. In Count II, Plaintiffs claim an ESA violation against the Forest Service for failing to conduct ESA § 7 consultation before enacting a new Forest Plan standard. Count III states a claim under NEPA for failure to conduct a public process before amending the Forest Plan. As framed by the arguments presented in the Plaintiffs' briefing, all three claims in the Amended Complaint are predicated on the assumption that the Amended Record of Decision constitutes a programmatic amendment to the Flathead National Forest Plan. As stated earlier, this is simply not the case.
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a); see also, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is particularly applicable to cases involving judicial review of final agency action. Occidental Engineering Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985) (citation omitted). Summary judgment is appropriate in this case because the issues presented address the legality of the Federal Defendants' actions based on the administrative record and do not require resolution of factual disputes.
This case is unlike most environmental litigation because the parties disagree
It is not a close question. The Amended Record of Decision is devoid of any language suggesting that the decision includes a programmatic amendment to the Forest Plan. The document's clear purpose is to explain how the project complies with Forest Plan. The Supervisor's cover letter states that the Amended Record of Decision "addresses information demonstrating that the Moose Project complies with the applicable Forest Plan requirements." AR MII-1 at 1 of 6. In announcing her decision the Supervisor states, "After reviewing the original [Moose Project Record of Decision] in conjunction with information provided in the [Amended Record of Decision], I have determined the original decision will remain in effect and unchanged." Id. (emphasis added). Elsewhere the Supervisor states, "I have decided to continue to implement the travel management actions associated with the original Moose [Record of Decision] (2002)." Id. at 2 of 6. In other words, the agency's action is limited to the approval of the Moose Project, which contained only site-specific Forest Plan Amendments and no Forest-wide management direction.
The Plaintiffs rely on several arguments to support their view that the agency action contains a Forest Plan Amendment. They argue that the Amended Record of Decision contains a section captioned "FOREST PLAN STANDARD," which they say indicates an amendment to the Forest Plan. Doc. No. 35 at 4, 9-10. The problem with this argument is that it rests on a false premise; there is no such heading in the Amended Record of Decision. The section in question is titled "STANDARD FOR EVALUATING LAND USES," and in it the Supervisor sets forth an interpretation of the existing Forest Plan standard, not a new standard. AR MII-1 at 3 of 6.
Plaintiffs also argue that the Supervisor's interpretation of Amendment 9 must have created a new Forest Plan standard because the agency has applied the same interpretation in approving subsequent projects. Doc. No. 35 at 3. This argument is at odds with Ninth Circuit authority. For an agency document to have the force and effect of law, the document "must `(1) prescribe substantive rules—not interpretive rules, general statements of policy or rules of agency organization, procedure or practice—and, (2) ... [be] promulgated pursuant to a specific statutory grant of authority and in conformance with the procedural requirements imposed by Congress.'" Earth Island Inst. v. Carlton, 626 F.3d 462, 474 (9th Cir.2010) (quoting W. Radio Serv. Co. v. Espy, 79 F.3d 896, 901 (9th Cir.1996)). The Amended Record of Decision in this case sets forth at most an interpretive rule and is therefore not binding on the agency, regardless of whether the same interpretive standard has been applied in the analyses of subsequent projects.
In attempting to persuade the Court to view the agency action here a Forest Plan amendment, the Plaintiffs rely most heavily on the Ninth Circuit's Memorandum requiring remand to the agency. It is only by reference to the Ninth Circuit's Memorandum that one could plausibly assume that the Amended Record of Decision sets forth a programmatic amendment to the Forest Plan. The confusion is rooted in the Ninth Circuit's remand language, which states,
Swan View, 307 Fed.Appx. at 51. The Plaintiffs read this language as requiring the Forest Service to amend its Forest Plan. This Court reached the same conclusion in its Order granting the Defendants' motion to dismiss. But a more thorough and contemplative reading of the Memorandum calls that conclusion into question. Apart from the quoted sentence, there is nothing in the posture of the appeal, the nature of the claim, or the language of the Memorandum to support the inference that the appellate panel intended to issue a mandatory injunction requiring the agency to amend its Forest Plan.
The court of appeals identified two errors in its Memorandum, one by the Court and one by the agency. The Court's mistake, according to the panel, was that it "appl[ied] a standard of its own making to resolve the question[.]" 307 Fed.Appx. at 51. The agency erred because it failed to explicitly state how the Moose Project complies with Amendment 9's "compete" provision, which in the panel's view required the agency to give additional interpretive content to the provision:
Id. at 51.
As articulated by the panel's Memorandum, neither error invites the remedy of a Forest Plan amendment. This Court's error could have been addressed by remanding with instructions to reconsider the issue without reference to the supposed improper standard applied in the first case. As for the agency's error, described by the court of appeals as a failure to acknowledge and consider "a factor relevant to its compliance with the Forest Plan," it would seem that the remedy
The nature of the issue presented on appeal also undermines the conclusion that the Memorandum requires a Forest Plan amendment. The Plaintiffs raised a single NFMA claim on appeal, arguing that the Moose Project violates Amendment 9's "compete" provision. The Plaintiffs did not challenge Amendment 9, either in this Court or on appeal.
Indeed, even the citation following the Ninth Circuit's remand instruction suggests that the Memorandum should be read to require the agency to give an explanation, and not to require an amendment to the Forest Plan. Immediately after ordering a remand to the agency with instructions to "establish and apply a standard," the court of appeals cites Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 962-64 (9th Cir.2005), which the panel parenthetically describes as "holding that the Forest Service's [environmental impact statement] failed to demonstrate that the proposed project complied with the applicable Forest Plan requirements, and remanding to the Forest Service to fix the error." Swan View, 307 Fed.Appx. at 51. The Native Ecosystems panel did not order the Forest Service to amend its Forest Plan. 418 F.3d at 965-66.
While it is useful here to explore the language of the Memorandum in order to understand the nature of the parties' dispute, the question of what the Ninth Circuit required of the Forest Service on remand is not before the Court. As the Plaintiffs state in their Response/Reply Brief on Summary Judgment, "Swan View is not seeking clarification or enforcement of the Ninth Circuit's mandate."
This conclusion is contrary to the Court's analysis in the Order on the Defendants' motion to dismiss. There the Court interpreted the Ninth Circuit's Memorandum to require a Forest Plan amendment. Doc. No. 15 at 11. My earlier misreading of the circuit's order should not interfere with the proper resolution of the issues presented on summary judgment. To begin, the analysis in the Order on the motion to dismiss dealt with whether the Plaintiffs might possibly be able to state an ESA claim such that they should be allowed leave to amend their Complaint, and thus did not form the basis of a dispositive resolution of any issue in the case on the merits. The statements are dicta,
Moreover, the Court may vacate its Order sua sponte under Fed.R.Civ.P. 60(b). Although there is some conflict among the circuits as to whether Rule 60(b) authorizes a district judge to vacate an order sua sponte, the Ninth Circuit has joined those that read the rule to allow a court to act on its own motion. See Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 351-52 (9th Cir.1999). In that case, the Ninth Circuit cited with approval a Fifth Circuit case in which the court "held that a district judge can vacate a judgment under Rule 60(b) where `after mature judgment and re-reading the record he was apprehensive that he had made a mistake,' and that `[t]he court could initiate this on its own motion.'" Id. at 351-52 (quoting McDowell v. Celebrezze, 310 F.2d 43 (5th Cir.1962)). Such circumstances exist here.
The arguments offered in the Plaintiffs' briefing are expressly contingent upon the assumption that the Forest Service amended the Forest Plan; each claim accuses the agency of failing to take some procedural step that is required before a programmatic Forest Plan amendment may be approved. In arguing their Count I NFMA claim, Plaintiffs state, "[T]he Forest Service here failed to conduct any public process or NEPA procedure, thus violating NFMA's public involvement requirements.... Because the new grizzly bear standard is an enforceable forest-wide standard, the Forest Service has the same NFMA public process requirements as a Forest Plan amendment." Doc. No. 25 at 12. Plaintiffs describe their Count II ESA claim as follows:
Id. at 8. As to the NEPA claim alleged in Count III, Plaintiffs argue that "[t]he failure to conduct a NEPA process for the new forest-wide standard is arbitrary and capricious and violates NEPA and the APA." Id. at 11.
Each of these claims fails because the Forest Service did not approve a new forest-wide management standard.
Based on the foregoing, IT IS HEREBY ORDERED:
1. The Court's April 26, 2010 Order on the Federal Defendants' motion to dismiss (Doc. No. 15) is VACATED to the extent set forth in this Order.
2. The Forest Service's motion for summary judgment (Doc. No. 29) is GRANTED, and the Plaintiffs' motion for summary judgment (Doc. No. 24) is DENIED.
