Alliance for the Wild Rockies v. Savage, No. 16-35589 (9th Cir. 2018)
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Alliance filed suit against Federal Defendants to enjoin implementation of the East Reservoir Project on the Kootenai National Forest in northwest Montana. While this appeal was pending, the Forest Service reinitiated consultation with the FWS and subsequently issued a new biological opinion for the Lynx Amendment, completing a reconsultation process. Therefore, the panel rejected Alliance's assertion that the Forest Service's decision to approve the Project was arbitrary and capricious because it improperly relied on the Lynx Amendment in determining the impact of Project activities on lynx and lynx critical habitat. The panel dismissed the claim and remanded to the district court with directions to vacate the part of its summary judgment ruling that addressed this lynx related claim and to dismiss it as moot.
However, the panel held that Alliance was entitled to summary judgment on its claim that the Forest Service failed to comply with the Motorized Vehicle Access Act (Access Amendments). In this case, the Forest Service's failure to analyze whether the Project will increase the total linear miles of permanent roads within the Tobacco BORZ polygon (the overlapping area in which Cabinet-Yaak grizzly bears were sometimes found) beyond the baseline did not satisfy the plain terms of the Access Amendments and was therefore arbitrary and capricious. The panel reversed the district court's judgment as to this claim and remanded for further proceedings.
Court Description: Environmental Law. The panel reversed in part and vacated in part the district court’s summary judgment and remanded in an action brought by the Alliance for Wild Rockies against the United States Forest Service, the Fish and Wildlife Service, and others seeking to enjoin implementation of the East Reservoir Project on the Kootenai National Forest in northwest Montana. The Project contemplates a number of land management activities such as logging, thinning, and road construction and maintenance. These activities will take place in areas where two threatened species are present—the Canada lynx and the Cabinet-Yaak grizzly bear. The Alliance first asserted that the Forest Service’s decision to approve the Project was arbitrary and capricious because it improperly relied on the 2007 Northern Rocky Mountains Lynx Management Direction (“Lynx Amendment”) in determining the impact of Project activities on lynx and lynx critical habitat. The Alliance argued that the Forest Service should have requested reconsultation with the Fish and Wildlife Service on the Lynx Amendment, pursuant to the Endangered Species Act § 7, after the Fish and Wildlife Service designated large areas of lynx critical habitat on national forest land, including the Kootenai National Forest. The panel noted that while this appeal was pending, the 4 ALLIANCE FOR THE WILD ROCKIES V. SAVAGE Forest Service reinitiated consultation with the Fish and Wildlife Service, and after oral argument, the Fish and Wildlife Service issued a new biological opinion for the Lynx Amendment, completing the reconsultation process. The panel therefore vacated the portion of the district court’s summary judgment order that addressed the reconsultation claim and remanded with instruction to dismiss the claim as moot. The panel held that the Alliance was entitled to summary judgment on its second claim that, in approving the East Reservoir Project, the Forest Service failed to comply with the Motorized Vehicle Access Act (Access Amendments), which set standards for grizzly bear habitat on Forest Service Land. The panel held that the Forest Service’s failure to analyze whether the Project would increase the total linear miles of permanent roads within an area designated as the Tobacco BORZ polygon beyond the baseline did not satisfy the plain terms of the Access Amendments and was therefore arbitrary and capricious. The panel reversed the district court’s summary judgment and instructed the district court to remand the issue to the Forest Service for further proceedings consistent with the panel’s opinion.
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