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Sierra Club Northstar Chapter v. Kimbell: US District Court : ENVIRONMENT - Final Environmental Impact Statement, need for National Environmental Policy Act 'hard look' at water quality effects;

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Sierra Club Northstar Chapter,
Friends of the Boundary Waters
Wilderness, Defenders of Wildlife,
The Wilderness Society, and
Northeastern Minnesotans for
Wilderness,
Plaintiffs,
MEMORANDUM OPINION
v. AND ORDER
Case No. 07-3160 ADM/RLE
Abigail R. Kimbell, as Chief of the
U.S. Forest Service, and Ed Schafer,
as Secretary of Agriculture,
Defendants,
and
Minnesota Forest Industries, Inc.,
Minnesota Timber Producers
Association, St. Louis County,
and Lake County,
Intervenors,
and
Mark Holsten, as Commissioner
of the Minnesota Department of
Natural Resources,
Amicus Curiae.
______________________________________________________________________________
Catherine G. Davis, Esq., Brian B. ONeill, Esq., Richard A. Duncan, Esq., and Peter Hennigan,
Esq., Faegre & Benson LLP, Minneapolis, MN, on behalf of Plaintiffs.
David W. Fuller, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of
Defendants Abigail R. Kimbell, as Chief of the U.S. Forest Service, and Ed Schafer, as Secretary
of Agriculture.
2
David R. Oberstar, Esq., Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, MN, on behalf
of Intervenors Minnesota Forest Industries, Inc., and Minnesota Timber Producers Association.
Barbara A. Russ, Esq., Assistant St. Louis County Attorney, Duluth, MN, on behalf of
Intervenor St. Louis County.
Laura M. Auron, Esq., Assistant Lake County Attorney, Two Harbors, MN, on behalf of
Intervenor Lake County.
David P. Iverson, Esq., Assistant Minnesota State Attorney General, St. Paul, MN, on behalf of
Amicus Curiae Mark Holsten, as Commissioner of the Minnesota Department of Natural
Resources.
______________________________________________________________________________
I. INTRODUCTION
On June 30, 2008, the undersigned United States District Judge heard oral argument on
the Cross-Motions for Summary Judgment of Defendants Abigail R. Kimbell and Ed Schafer
(collectively the Forest Service) [Docket No. 79]; Intervenors St. Louis and Lake County
[Docket No. 66]; Intervenors Minnesota Forest Industries, Inc. and Minnesota Timber Producers
Association [Docket No. 81] (all Intervenors are collectively referred to as the Intervenors),
and Plaintiffs Sierra Club Northstar Chapter, Friends of the Boundary Waters Wilderness,
Defenders of Wildlife, the Wilderness Society, and Northeastern Minnesotans for Wilderness
(collectively Plaintiffs) [Docket No. 87]. In their Amended Complaint [Docket No. 48],
Plaintiffs challenge the decision by the Forest Service to conduct timber sales and road building
in the Echo Trail Area Forest Management Project (Echo Trail Project or Project) in the
Superior National Forest. For the reasons set forth below, the Forest Services Motion is granted
in part and denied in part. Plaintiffs Cross-Motion for Summary Judgment is granted as to
Count One of the Complaint and denied on the remaining counts.
1 On a motion for summary judgment, the Court views the evidence in the light most
favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). As
both parties and the Intervenors have moved for summary judgment, any disputed facts are
noted.
3
II. BACKGROUND1
This case arises from Forest Services decision to implement the Echo Trail Project in the
Superior National Forest. The Superior National Forest is three million acres of land, water,
rock, and trees in northeastern Minnesota, which includes the Boundary Waters Canoe Area
Wilderness (Boundary Waters). Land and Resource Management Plan (Forest Plan)
(Administrative R. [Docket No. 77]) at 12707-12710. In 2004, the Forest Service revised the
Superior National Forest Land and Resource Management Plan (the Forest Plan) to establish
goals and objectives for managing the Superior National Forest for the next ten to fifteen years.
Id. at AR12707.
The Forest Service determined the need for the Echo Trail project after evaluating the
existing conditions in the Project area and comparing those conditions to the desired conditions
and objectives established in the Forest Plan. Echo Trail Area Forest Management Project,
Record of Decision (Record of Decision) (Administrative R. [Docket No. 77] at AR8014. The
Project area comprises approximately 203,700 acres in St. Louis and Lake County, Minnesota.
Id. at AR8014. Sixty-two percent of the Project area is owned by the National Forest System, a
portion of which borders the Boundary Waters. Id. None of the Project area is located within
the Boundary Waters. Id. The Forest Plan divides the Superior National Forest into several
different management areas and landscape ecosystems. Echo Trail Project Final Environmental
Impact Statement (FEIS) (Administrative R.) at AR7921. The Echo Trail Project is located in
4
the Jack Pine/Black Spruce Landscape Ecosystem. Id. The Forest Service chose the Echo Trail
Project area for management activities because [t]he jack pine . . . is old and mature and as it
declines, there is concern that the jack pine cover type will be lost to other species. Id. The
Forest Service determined that planting new jack pine in the Project area would contribute to a
Forest Plan desired condition. Id. Before preparing the Final Environmental Impact Statement
(FEIS) for the Echo Trail Project, the Forest Service worked with an interdisciplinary team of
specialists in wildlife, biology, forestry, wilderness, timber, ecology, and hydrology. FEIS at
AR7924, AR7864-7865. The team developed a packet specifying the need for the Project, its
purpose, and the proposed actions. Id. at AR7924. The team distributed the packet to members
of the public, organizations, and agencies, in addition to placing the information online and
distributing it to local and regional newspapers. Id. at AR7924. This distribution of information
is referred to as the scoping process. Id. Through the scoping process the interdisciplinary team
identified issues of debate that it then addressed in a draft EIS for the Echo Trail Project
(DEIS). Id. at AR7925. The Forest Service distributed the DEIS to the public and set a fortyfive
day comment period beginning on April 14, 2006. Id. The Forest Service received 1200
pieces of correspondence in response to its DEIS. The Forest Service addressed many of the
comments made in response to the DEIS and made some changes prior to the release of the
FEIS.
In the FEIS, the Forest Service considered four management alternatives, including a noaction
alternative. Id. at AR7622. After reviewing each of the action alternatives, the Forest
Service concluded that each action alternative would advance the objectives and goals of the
Forest Plan. Id. at AR7626. In chapter three of the FEIS, the Forest Service evaluated the
5
physical, biological, and social resources in the Project area that might be affected by the three
action alternatives and the direct, indirect, and cumulative effects that the three action
alternatives might have on those resources. Id. at AR7647. Ultimately, the Forest Service
decided to implement the third alternative presented in the FEIS. ROD at AR8016. The Forest
Service summarized the approved actions as follows:
the Selected Alternative will include clearcut with reserves, partial cut, and
thinning treatments on about 12,701 acres, regeneration (natural or with planting)
of stands on 11,922 acres, diversity planting and release work outside harvested
areas on 1,280 acres, disposing of about 601 slashpiles, construction and
subsequent closure of 74 miles of temporary road, decreasing the National Forest
System of roads by 11 miles, decommissioning a total of 35 miles of road, and
maintaining 37 gravel pits.
Id.
Plaintiffs initiated an administrative appeal of the Forest Services decision on March 20,
2007, raising the same issues presented in their Amended Complaint. The Appeal Deciding
Officer affirmed the Forest Services approval of the Echo Trail Project. Plaintiffs now seek
relief from this Court. In the Amended Complaint, Plaintiffs assert five Counts against the
Forest Service. Plaintiffs have voluntarily dismissed Count Four with prejudice leaving four
counts in dispute. Plaintiffs argue that the Forest Services analysis in its FEIS fails the
requirements articulated in the National Environmental Policy Act (NEPA), the Wilderness
Act, and the National Forest Management Act (NFMA). Am. Compl. 87-121.
Accordingly, Plaintiffs contend that the Forest Services approval of the Echo Trail Project is
arbitrary and capricious in violation of the Administrative Procedures Act (APA). Id.
6
III. DISCUSSION
A. Standard of Review
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
Plaintiffs claims are subject to judicial review under the APA, which requires a reviewing court
to hold unlawful and set aside agency action, findings, and conclusions found to be . . .
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.
706(2)(a).
The scope of review under the arbitrary and capricious standard is narrow and a court
is not to substitute its judgment for that of the agency. Motor Vehicle Mfrs. Assn of U.S., Inc.
v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). In reviewing the agencys explanation
for its action, the Court considers whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment. Id. (internal quotation
omitted). An agencys rule is arbitrary and capricious if it (1) relied on factors Congress did not
intend it to consider; (2) entirely failed to consider an important aspect of the problem; (3)
offered an explanation for its decision that runs counter to the evidence before the agency; or
(4) is so implausible that it could not be ascribed to a difference in view or the product of
agency expertise. Id.
7
B. Count INEPA Violation Related to Boundary Waters
In Count I of the Amended Complaint, Plaintiffs allege the Forest Service violated NEPA
by failing to take a hard look at the impacts of the Echo Trail Project on the Boundary Waters.
NEPA requires an environmental impact statement (EIS) for all major Federal actions
significantly affecting the quality of the human environment. 42 U.S.C. 4332(2)(C). NEPA
requires an agency to draft an EIS for actions significantly affecting the environment to inform
the public and assure them that the agency has indeed considered environmental concerns in its
decisionmaking process, and in doing so, provide a springboard for public comment. Robertson
v. Methow Valley Citizens Council, 490 U.S. 332, 349-50 (1989) (internal quotation and citation
omitted).
NEPA prohibits uninformed-rather than unwise agency action, and therefore, requires
that the agency take a hard look at environmental consequences but does not mandate
particular results. Id. at 350-51. NEPA requires that the agency include in the EIS
consideration of the direct, indirect, and cumulative effects of the project. NEPA defines a direct
effect as one caused by the action and occurring at the same time and place. 40 C.F.R.
1508.8(a). An indirect effect is caused by the action and is later in time or farther removed in
distance, but is still reasonably foreseeable. Id. NEPA defines a cumulative impact as the
impact on the environment which results from the incremental impact of the action when added
to other past, present, and reasonably foreseeable future actions . . . . Cumulative impacts can
result from individually minor but collectively significant actions taking place over a period of
time. 40 C.F.R. 1508.7.
8
The Council on Environmental Quality has promulgated regulations listing
considerations agencies should take into account in fulfilling their obligation to take a hard
look at environmental impacts. Heartwood, Inc. v. U.S. Forest Service, 380 F.3d 428, 431 (8th
Cir. 2004). One consideration listed is the [u]nique characteristics of the geographic area such
as proximity to . . . park lands, . . . wild or scenic rivers, or ecologically critical areas. 40
C.F.R. 1508.27(b)(3). Because the Echo Trail Project abuts the Boundary Waters, a designated
wilderness area, the Forest Service was required to consider impacts on the Boundary Waters in
addition to the impacts within the Project area. Friends of Boundary Waters Wilderness v.
Bosworth, 487 F.3d 815, 818 (8th Cir. 2006) (providing background on the Boundary Waters);
see also Heartwood, Inc., 380 F.3d at 433 (upholding the Forest Services determination that a
project would have no significant impacts on the environment where the environmental
assessment included in its analysis potential impacts to a scenic river that was more than a mile
away from the proposed project area).
By a review of the agencys EIS the Court determines whether the agency has made a
good faith effort to consider the values NEPA seeks to protect. Minn. Pub. Interest Research
Group v. Butz, 541 F.2d 1292, 1299 (8th Cir. 1976). The Eighth Circuit has provided the
following guidance for evaluating whether an EIS meets NEPAs requirements:
The statement must not merely catalog environmental facts, but also explain fully
its course of inquiry, analysis and reasoning. The role of the courts is simply to
ensure that the agency has adequately considered and disclosed the environmental
impact of its actions and that its decision is not arbitrary or capricious. Adequate
agency consideration is evidenced through the EISs form, content, and
preparation. We need not fly speck an EIS for inconsequential or technical
deficiencies. Instead, we consider whether the agencys actual balance of costs
and benefits was arbitrary or clearly gave insufficient weight to environmental
values.
9
Friends of Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1127-28 (8th Cir. 1999)
(internal quotations and citations omitted).
Plaintiffs contend the Forest Service violated NEPA by failing to evaluate the Echo Trail
Projects impacts on the Boundary Waters. Plaintiffs contention is not that the Forest Service
entirely ignored and failed to consider the impacts on the Boundary Waters, but rather that the
Forest Service engaged in a selective analysis that falls short of the hard look analysis NEPA
requires.
1. Water Quality
Plaintiffs contend the FEIS completely fails to consider impacts on water quality in the
Boundary Waters despite concluding that there would be some direct and indirect negative
effects to water within the Project area, which is adjacent to the Boundary Waters. Plaintiffs
contend the Forest Services conclusion that there was no need to evaluate impacts on the
Boundary Waters because impacts within the Project area would be minimal was without
support. Plaintiffs assert the Forest Service had an obligation to evaluate impacts to water
quality within the Boundary Waters, and that by failing to do so, the Forest Service violated
NEPA and adopted a project decision that is arbitrary and capricious.
The Forest Service acknowledges the FEIS conclusion of minimal direct and indirect
negative effects to water quality and watershed health in the Project area. Defs. Mem. in Supp.
of Mot. for Summ. J. [Docket No. 82] at 16. However, the Forest Service argues that because
the Project would have no cumulative impacts on water quality within the Project area, there was
no reason to separately examine potential impacts within the Boundary Waters.
10
The FEIS is tiered to the Forest Plan. By adhering to the standards set forth for managing
the Superior National Forest, which includes the Boundary Waters, the Forest Service
necessarily adhered to requirements for management of the Boundary Waters. Utilizing the
standards articulated in the Forest Plan, the Forest Service concluded that the Echo Trail Project
would have minimal negative direct and indirect impacts on water quality or watershed health
within the Project area. FEIS at AR7699. Although the Project created the risk for negative
direct and indirect impacts, the Forest Service determined there was no risk of cumulative
impacts on water quality and watershed health in the Project area. FEIS at AR7701.
The FEIS does not assess the Projects impacts on water quality and watershed health in
the Boundary Waters. The fact that the FEIS is tiered to the Forest Plan does not cure this
deficiency. Although the Forest Plan does include a discussion regarding the goals and
standards for managing the Boundary Waters, it does not inform the public of the possible
impacts to water quality in the Boundary Waters caused by the Echo Trail Project or any other
harvesting project. FEIS at AR7781-AR7820. An objective of an EIS is to inform and assure
the public that the environmental impacts of a proposed action have been fully considered. The
FEIS in this case fell short of fully fulfilling its purpose.
Further, the Forest Services argument that no analysis of the impacts on water quality in
the Boundary Waters was necessary because of its finding that there would be no cumulative
impacts in the Project area is without support. No explanation is provided as to why there would
be no direct or indirect negative impacts to the Boundary Waters despite the anticipation of
direct and indirect negative impacts in the Project area. If, as the Forest Service argues, it is
reasonable to assume there would be no cumulative impacts to the Boundary Waters because
11
there would be no such impacts in the Project area, then it also seems reasonable to assume that
the presence of direct and indirect negative impacts in the Project area creates some risk of
similar impacts in the Boundary Waters. Even if those risks are minimal, the Forest Service
must explain why even slight negative direct and indirect impacts would not result in negative
cumulative impacts . See 40 C.F.R. 1508.7 (Cumulative impacts can result from individually
minor but collectively significant actions taking place over a period of time.). The need for
such an explanation is especially great given that there are multiple harvesting projects occurring
within the Superior National Forest that may cause minimal impacts on the Boundary Waters,
which taken together may give rise to negative cumulative impacts. By failing to consider the
Projects impacts on the water quality and watershed health of the Boundary Waters, the Forest
Service failed to conduct the hard look analysis required by NEPA.
2. Cumulative Impacts of Other Harvesting Projects
Plaintiffs also allege the Forest Service failed to analyze the cumulative impacts of the
Echo Trail Project and other timber harvesting activities on the Boundary Waters. Specifically,
Plaintiffs contend that [t]o adequately consider the Projects cumulative impacts to the
Boundary Waters, the Forest Service must consider the impact of the Project in combination with
all other past, present, and foreseeable timber harvests occurring along the edge of the Boundary
Waters. Am. Compl. 95. Plaintiffs identify five forest projects (the Tomahawk, Plantation,
Little East Creek, Crescent Lake, and Glacier projects) the Forest Service allegedly failed to
consider. The Forest Service responds that Chapter 3 of the FEIS addresses the cumulative
impacts of the Tomahawk, Plantation and Little East Creek Projects. The Forest Service did not
12
consider the Crescent Lake project relevant to the Echo Trail Project and did not consider the
Glacier projects impacts because it had not yet been proposed when the FEIS was drafted.
A review of the record leaves no question that the Forest Service considered other
harvesting projects when assessing cumulative impacts of the Echo Trail Project on the Superior
National Forest. For example, in the chapter addressing fire regime condition class, the Forest
Service specifically included in the discussion of cumulative impacts a detailed discussion of the
Little East Creek project. FEIS at AR7709. Other sections of the FEIS similarly include
discussions of other harvesting projects, and Appendix I specifically details the harvesting
projects the Forest Service considered in analyzing cumulative effects. Id. at AR7215.
Appendix I is more comprehensive than a mere listing of projects, it provides a detailed
discussion of the Plantation and Three Bays on Lake Vermilion Projects. Id. at AR7215-
AR7216. Unlike the Forest Services discussion of water quality and watershed health, which is
limited to the Project area, the Forest Services analysis of other harvesting projects analyzes
impacts to the Superior National Forest, which includes the Boundary Waters. Accordingly, the
Forest Service did consider the cumulative impacts of other harvesting projects on the Boundary
Waters. The Forest Service in the FEIS is not required to specifically discuss each of the
projects cited by Plaintiffs. What is required, is that the FEIS include a thorough and thoughtful
consideration of other harvesting projects within the Superior National Forest, which it does.
See Minn. Pub. Interest Research Group, 541 F.2d at 1299 (explaining that courts analyze the
agencys EIS to determine whether the agency has made a good faith effort to consider the
values NEPA seeks to protect).
13
The Forest Service also argues that the FEIS utilized data based on vegetation
information combined in a comprehensive and sophisticated database referred to as the
Combined Data System (CDS). The CDS allegedly takes into account the cumulative impacts
of other harvesting projects in the Forest because the CDS data is detailed down to the stand
level and is updated annually, thus automatically incorporating information about other
harvesting projects on Forest land. Plaintiffs dispute whether use of the CDS data demonstrates
consideration of other harvesting projects. Having already determined that the Forest Service
considered the cumulative impacts of other harvesting projects, the Court will not explore the
intricacies of the CDS other than to note it is further evidence of a good faith attempt by the
Forest Service to uphold the environmental values of NEPA.
3. Invasive Species
Finally, Plaintiffs contend that the Forest Service acknowledged in the FEIS that timber
harvesting will contribute to the spread of non-native invasive species (NNIS) but failed to
analyze cumulative NNIS impacts to the Boundary Waters. The Forest Service asserts that they
did consider the impacts of NNIS on the Boundary Waters and determined that it was a lesser
risk than that posed by recreation use in the Boundary Waters.
There is no support for the argument that the Forest Service failed to consider the impacts
of NNIS on the Boundary Waters. To the contrary, a review of the FEIS demonstrates that the
Forest Service engaged in the requisite discussion of the impacts of NNIS on the Boundary
Waters:
Some who commented during scoping raised the concern that the Echo Trail
project would spread NNIS into the BWCAW. However, the likelihood of NNIS
spread into the BWCAW due to project activities is low . . . . NNIS spread in the
2 Although the Intervenors filed Motions for Summary Judgment against Plaintiffs, they
did not address the Forest Services failure to analyze impacts to the water quality and watershed
health of the Boundary Waters and thus failed to present any evidence demonstrating they are
entitled to summary judgment on Count One or that Plaintiffs should be denied summary
judgment.
14
BWCAW is far more likely due to recreational use, which would not change
under [the Project alternatives].
FEIS at AR7717.
Although the Forest Service properly considered the cumulative impacts of other
harvesting projects and NNIS, they did not consider the Projects impacts on water quality and
watershed health in the Boundary Waters. Accordingly, Plaintiffs are entitled to summary
judgment on Count One.2
C. Count TwoWilderness Act Violation
In Count Two of the Amended Complaint, Plaintiffs allege that [b]y approving a Project
which degrades the wilderness character of the Boundary Waters, the Forest Service violated
Section 4(b) of the Wilderness Act, 16 U.S.C. 1133(b), and its implementing regulations, and
the APA, 5 U.S.C. 706(2). Am. Compl. 99. The Wilderness Act of 1964, 16 U.S.C.
1131-36 (1994), established a national system of preserving and protecting federally held
wilderness areas. Friends of the Boundary Waters Wilderness, 164 F.3d at 1119. The Forest
Service contends that because the Project activities occur outside the wilderness area, it is not
subject to the provisions of the Wilderness Act. The parties dispute the reach of 4(b) of the
Wilderness Act, specifically, whether it regulates actions occurring in adjacent non-wilderness
areas. Section 4(b) provides:
Except as otherwise provided in this chapter, each agency administering any area
designated as wilderness shall be responsible for preserving the wilderness
15
character of the area and shall so administer such area for such other purposes for
which it may have been established as also to preserve its wilderness character.
16 U.S.C. 1133(b).
The plain language of 4(b) does not distinguish between impacts on the wilderness
arising from actions within the protected area or on land adjacent to it. However, 4(a)(1)
states: Nothing in this chapter shall be deemed to be in interference with the purpose for which
national forests are established as set forth in the . . . Multiple-Use Sustained-Yield Act. The
Multiple-Use Sustained-Yield Act requires that national forests be administered for outdoor
recreation, range, timber, watershed, and wildlife and fish purposes. 16 U.S.C. 528 (emphasis
added). Because there is a tension between the need to preserve the wilderness of the Boundary
Waters and the need to conduct timber harvesting activities to manage the Superior National
Forest, the Wilderness Act does not impose a per se ban on all agency activity having an impact
within the wilderness area. See also Izaak Walton League of Am., Inc. v. Kimbell, 516 F. Supp.
2d 982, 989-90 (D. Minn. 2007) (addressing the very question currently before this court).
Nonetheless, actions occurring on adjacent non-wilderness lands that have an impact on
designated wilderness are regulated by the Wilderness Act.
The crucial issue of the amount of impact an action occurring on adjacent land must have
on a designated wilderness area before violating the Wilderness Act need not be decided here.
Plaintiffs argue the Forest Service cannot be found to have complied with the Wilderness Act
given their failure to analyze the impacts of the Echo Trail Project on the Boundary Waters.
Specifically, Plaintiffs raise the issues of NNIS and water quality and watershed health. As
already explained, the Forest Service adequately considered the impacts the Echo Trail Project
would have on NNIS in the Boundary Waters but failed to consider impacts to water quality or
16
watershed health in the Boundary Waters. Because the impacts the Echo Trail Project has on the
water quality and watershed health of the Boundary Waters has not yet been addressed, the Court
is unable to analyze whether the Echo Trail Projects impacts on water quality and watershed
health in the Boundary Waters violates the Wilderness Act. Accordingly, all motions for
summary judgment on this claim are denied without prejudice until the Forest Service has
amended the FEIS in accordance with this Order.
D. Count IIINEPA Violation Related to Lynx
In Count III of the Amended Complaint, Plaintiffs allege the Forest Service violated
NEPA by failing take a hard look at the Projects impacts on lynx conservation and recovery.
Am. Compl. 101-104. NEPAs implementing regulations require the Forest Service to
consider [t]he degree to which the action may adversely affect an endangered or threatened
species or its habitat that has been determined to be critical under the Endangered Species Act of
1973. 40 C.F.R. 1508.27. The Canada lynx is designated as an threatened species. 50 C.F.R.
17.11. Accordingly, one of the objectives of the Forest Plan is to promote a consistent and
effective approach to conservation and recovery of Canada lynx on National Forest System
land. Forest Plan App. E-1 at AR11920. The Forest Service determined it must maintain lynx
habitat connectivity to further its goal of conserving and recovering lynx in the Superior
National Forest. See Lynx Strategy (Administrative R. at AR24799).
The Forest Service uses Lynx Analysis Units (LAUs) to evaluate and monitor effects
of management actions, lynx population status, habitat conditions, and risk factors for lynx on
National Forest land. Forest Plan at AR11923. LAUs encompass lynx habitat and are the
smallest landscape scale analysis units used to determine direct, indirect, and cumulative impacts
17
on lynx. The Forest Service analyzes the percentage of canopy cover in LAUs to evaluate
habitat connectivity. Forest Plan Biological Assessment (Defs. Ex. [Docket No. 101] Ex. 12) at
112. Connectivity refers to vegetation cover in sufficient quantity and arrangement to allow
lynx to easily move long distances in search of food, cover, and mates. Id. at 111. The Forest
Service uses adequate canopy cover as an indicator for habitat connectivity. Id. at 112.
Adequate canopy cover is defined as upland forest greater than four-years old and lowland forest
greater than nine-years old. Id. The Echo Trail Project Biological Assessment (Echo Trail
Project BA) provides the percentage of canopy cover in each LAU within the Project area.
Echo Trail Project BA (Administrative R. at 00007083) at 29. The Forest Service determined
that vegetative connectivity for movement across LAUs (indicator 4) is maintained with all
alternatives. Id. at 36.
Plaintiffs contend, however, that by relying on the percentage of canopy cover within
each LAU without specifically identifying the locations within each LAU that contain the
requisite canopy cover, the Forest Service failed to consider how the location of the Projects
12,000 acres of harvest could restrict lynx movement and use patterns. Pls. Reply Mem. in
Supp. of Mot. for Summ. J. [Docket No. 99] at 6. The Forest Service contends that they
adequately considered the Projects impacts on lynx and lynx habitat connectivity and thus did
not violate NEPA.
Once again NEPA requires that the Forest Service take a hard look at the environmental
consequences of a proposed project before taking a major action. Baltimore Gas & Elec. Co. v.
Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). In analyzing whether the Forest Service
336 C.F.R. 219.19(a)(1) (1999), which directs agencies regarding the use of
management indicator species simply states that certain vertebrate and/or invertebrate species . .
. shall be identified and selected as management indicator species, without indicating that any
particular number must be selected. Further, section 219.19(a)(1) provides a list of categories of
indicator species and states that the following categories shall be represented where
appropriate, and leaves it to the agency to determine which categories are appropriate.
18
met the hard look requirement the Court determines whether the agency has adequately
considered and disclosed the environmental impact of its actions. Id. at 97-98.
In the Echo Trail Project BA, the Forest Service compared the existing percentage of
adequate canopy cover in the individual LAUs within the Project area with the projected
percentage of adequate canopy cover under each project alternative. From this comparison the
Forest Service determined the impacts the Project would have on adequate canopy cover in the
Project area and thus the Projects impacts on lynx habitat connectivity. Plaintiffs offer no
evidence that the Forest Services strategy prevents adequate consideration and disclosure of the
impacts of the Project. Although utilizing a map to identify the location of adequate canopy
cover within the Project area would be helpful and informative, the Forest Service is afforded
discretion in carrying out its duties3 and Plaintiffs have offered no evidence or legal authority
that failure to include a map resulted in a NEPA violation. Further, Plaintiffs have offered no
evidence for the proposition that utilizing the percentage of canopy cover as an indicator for
habitat connectivity per se results in an arbitrary and capricious decision. Accordingly, Plaintiffs
Motion for Summary Judgment on Count Three is denied. A review of the administrative record
reveals that the Forest Service considered the Projects impacts to lynx habitat connectivity and
that its use of the percentage of adequate canopy cover is supported by sound reasoning.
Accordingly, the Forest Services Motion for Summary Judgement on Count Three is granted.
19
E. Count VNFMA Violation
The National Forest Management Act (NFMA) requires the Forest Service to develop
land and resource management plans for national forests. 16 U.S.C. 1604(a). Pursuant to
the NFMA, forest plans must further the goals of diversity of plant and animal communities
based on the suitability and capability of the specific land area. 16 U.S.C. 1604(g)(3)(B). In
furtherance of that goal, the Forest Services is required to monitor management indicator species
(MIS), because their population changes are believed to indicate the effects of management
activities. 36 C.F.R. 219.19(a)(1) (1999).
In Count Five of the Amended Complaint, Plaintiffs allege the Forest Plan violates the
NFMA. Am Compl. 109-11. Plaintiffs object to the Forest Services use of management
indicator species (MIS) on three grounds: (1) Plaintiffs contest the Forest Services use of four
MIS in the Forest Plan and assert that the selected MIS are not bellwethers for other species in
the Superior National Forest; (2) Plaintiffs argue that the Forest Service cannot cure the failure to
consider an adequate number of MIS by their use of management indicator habitats (MIH);
and (3) Plaintiffs contend that by failing to utilize an adequate number of MIS, the Forest
Service rendered meaningless its obligation to monitor the population trends of MIS.
The Forest Service contends that the NFMA does not prescribe a specific number of MIS
that must be included in the Forest Plan nor does the NFMA dictate what categories of species
the MIS represent. Further, the Forest Service argues that they do not use MIH in lieu of MIS
but rather the MIH compliment their assessment on wildlife diversity in the Superior National
Forest. Accordingly, the Forest Service contends that their use of the MIS selected in the Forest
Plan, supported by the additional assessment of MIH, satisfies NFMA requirements.
4 Because the Court grants the Forest Service summary judgment on Counts Two, Three,
and Five, the Intervenors Motions for Summary Judgment on these Counts are denied as moot.
20
Plaintiffs fail to demonstrate why the use of four MIS is arbitrary and capricious.
Contrary to Plaintiffs assertions, the Forest Services decision to substantially decrease the
number of MIS used in the 2004 Forest Plan is not, by itself, evidence of an arbitrary action. See
36 C.F.R. 219.19 (leaving the number and type of MIS to the discretion of the Forest Service).
Further, Plaintiffs fail to explain why the four MIS used by the Forest Service cannot serve as
bellwethers for other species in the Superior National Forest. Similarly, Plaintiffs fail to address
why the Forest Service cannot use MIH to compliment its analysis of MIS.
A review of the Forest Plan reveals a thorough and reasoned explanation for the selection
of the MIS used in the Forest Plan and subsequent FEIS and the reasons for using MIH to
compliment the Forest Plans analysis of MIS. Forest Plan FEIS (Administrative R.) at
AR11203, AR11305, AR11317, AR11360, AR11371. Accordingly, the Forest Services
decision regarding the number of MIS, the selection of MIS, and the use of MIH was neither
arbitrary nor capricious. As such, the Forest Service is entitled to summary judgment on Count
Five.4
F. Relief
By failing to consider the Projects impacts on water quality and watershed health within
the Boundary Waters, the Forest Service failed to take a hard look at the Projects impacts as
required by NEPA. As a result, the adoption of the Project based on the FEIS was arbitrary and
capricious. Accordingly, the FEIS is vacated and the Forest Service is ordered to amend the
FEIS to include an analysis of the Projects impacts to water quality and watershed health in the
21
Boundary Waters. The FEIS is comprehensive and thoughtful and presents a great deal of
information. Accordingly, it is quite likely that the Forest Service already has the information
necessary to address the Projects impacts on the Boundary Waters. To comply with NEPAs
hard look analysis regarding the Projects impacts to water quality within the Boundary
Waters, the Forest Service must explain whether the Project will have any direct, indirect, or
cumulative impacts on the Project area and how it arrived at its conclusion. Until the Forest
Service amends the FEIS as ordered, it is enjoined from implementing the Echo Trail Project.
22
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiffs Sierra Club Northstar Chapter, Friends of the Boundary Waters
Wilderness, Defenders of Wildlife, the Wilderness Society, and Northeastern
Minnesotans for Wilderness (collectively Plaintiffs) Motion for Summary
Judgment [Docket No. 87] is GRANTED as to Count One of Plaintiffs
Amended Complaint [Docket No. 48] and DENIED as to Counts Two, Three,
and Five;
2. Defendants Abigail R. Kimbell and Ed Schafers Motion for Summary Judgment
[Docket No. 79] is DENIED as to Count One of Plaintiffs Amended Complaint
and GRANTED on Counts Two, Three, and Five; and,
3. Intervenors St. Louis and Lake County and Intervenors Minnesota Forest
Industries, Inc. and Minnesota Timber Producers Associations Motions for
Summary Judgment [Docket Nos. 66, 81] are DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: September 15, 2008.
 

 
 
 

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