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X7  B.` ` Recent Cases Confirm The Justiciability Of Plaintiffs' Claims Here The propriety of Plaintiffs' challenges here regarding the Clearwater's failure to monitor MIS population trends, or to maintain old growth habitat challenges which, again, raise forestwide defects within the context of sitespecific decisions is reflected in three recent decisions closely on point, in which the Forest Service was found to violate NFMA or its own Forest Plans across several national forests with respect to population monitoring requirements. See Sierra Club et al. v. Peterson, __ F.3d __, 1999 WL 618115, No. 9741274 (5th Cir., 8/16/99); Sierra Club v. Martin, 168 F.3d 1 (11th Cir. 1999); Oregon Natural Resources Council Action v. USFS, __ F.Supp.2d. ___, No. C98942WD (W.D. Wash., 8/2/99). All three cases specifically address the Forest Service's failure to conduct requisite species monitoring before embarking on timber sales; and in all three cases the  YV court enjoined the sales from proceeding based on those violations.Vq Y ԍIt bears emphasizing, again, the fact that Plaintiffs here have alleged monitoring violations in the context of specific approved timber projects distinguishes this case from Ecology Center v. U.S. Forest Service, CV 96142MLBE (D. Mont. 12/2/97), in which this Court dismissed failure to monitor claims which were not based on any specific project.  In Peterson, the Fifth Circuit affirmed the trial court's entry of injunctive relief halting timber sales across three East Texas National Forests based on numerous forestwide violations of the National Forest Management Act, including failure to conduct population monitoring of MIS species. See Sierra Club v. Glickman, 974 F. Supp. 905 (E.D. Tex. 1997), aff'd sub nom Sierra Club v. Peterson, __ F.3d ___, 1999 WL 618115 (5th Cir.,! 40*((  Y 8/16/99).q Yy ԍThe Peterson opinion is also available on the Internet at: www.ca5.uscourts.gov/opinions/pub/97/9741274CV0.HTM. According to the 5th Circuit's opinion, the district court found that: Xthe Forest Service had acknowledged that, with certain exceptions, it does not monitor the populations of the wildlife species which were selected in the 1987 Plan and the 1996 revised LRMP as Management Indicator Species because such monitoring and inventorying is "not practical." Id. at 932. Based on this concession, the court found that "[t]he Forest Service is not adequately inventorying or monitoring: (1) populations of some wildlife MIS; (2) diversity in terms of its prior and present condition; and (3) its management activities as to whether it is meeting objectives and adhering to management standards and guidelines." Id. at 933. Consequently, "[t]he Forest Service's failure to adequately inventory and monitor may be causing permanent and substantial damage to the productivity of the land." Id. at 912.  Peterson, __ F.3d. at ___, slip op. at p. 7. The Fifth Circuit upheld these findings, and affirmed the injunctive relief entered by the district court. Id. Rejecting similar claims of nonjusticiability as those brought by Defendants here, based on Lujan I, the court stated: XThis case involves a decision by the Forest Service to permit evenaged timber management and future timber sales on specific plots of National Forest land. Naturally, there may be no future sales until the trees have been logged, but it is the logging practices and the failure to inventory and monitor that Appellees challenge here: specific practices, on specific pieces of land. The practices at issue in Lujan I were entirely dissimilar; in that case, plaintiffs challenged everything about the BLM's policies from soup to nuts, not a sitespecific individual policy.  Peterson, __ F.3d at ___, slip op. at 10. Peterson further notes that again, as is the case here the plaintiffs were not challenging "rules of general applicability, but specific applications of those rules; these applications are the `further agency action' that Lujan I b0*((  Y contemplated for agency action to ripen." Id., slip op. at 11.< q Yy ԍNotably, Peterson also approved the district court's conduct of an evidentiary hearing on plaintiffs' claims that the Forest Service was violating NFMA requirements in its administration of the East Texas National Forests. Id., slip op. at 1220. Plaintiffs are seeking a similar evidentiary hearing here, with respect to the pending Old Growth Motions. See Plaintiffs' Motions: (1) To Set An Evidentiary Hearing, (2) For Leave To Conduct Discovery, And/or (3) For A CourtAppointed Expert Witness, filed herewith. Because Defendants effectively concede here they have not conducted population trend monitoring for MIS old growth species on the Clearwater, such an evidentiary hearing is not necessary with respect to Plaintiffs' monitoring motion. < In Sierra Club v. Martin, 168 F.3d 1 (11th Cir. 1999), the U.S. Court of Appeals for the Eleventh Circuit reached a similar result. There, plaintiffs challenged seven timber sales within a Georgia National Forest, based on the Forest Service's failure to monitor MIS species in violation of NFMA and the Forest Plan. The appellate court upheld the justiciability of plaintiffs' claims which, like here, alleged forestwide violations in the context of a number of specific projects, stating that plaintiff "was entitled to challenge the Forest Service's compliance with the [forest] Plan as part of its sitespecific challenge to the timber sales." Id., 168 F.3d at 6. The court further found, on the merits of plaintiffs' claims, that the agency violated both Forest Plan and NFMA requirements by failing to gather "any inventory or population data" for many species. Id., 168 F.3d at 46. The recent opinion of the Western District of Washington in Oregon Natural Resources Council Action v. USFS, __ F.Supp.2d. ___, No. C98942WD (W.D. Wash.,  Y 8/2/99), q YX# ԍA copy of the ONRC opinion is submitted as Exhibit 1 to the accompanying Supplemental Declaration of William M. Eddie Re: Monitoring Violations. further demonstrates the justiciability of claims, such as Plaintiffs raise here, that the Forest Service has failed to conduct species monitoring required under its own ForestV 0*(( Plans when approving timber sales. In ONRC, the court reviewed claims arising from nine timber sales across several National Forests in the western Cascades, for which the Forest Service and BLM had adopted an integrated management plan to address spotted owl and old growth issues a plan which the agencies adopted in response to prior judicial findings of a "remarkable series of violations of the environmental laws" in failing to protect the spotted owl. See ONRC, ___ F.Supp.2d at ___, slip op. at p. 23, citing Seattle Audubon Soc'y v. Evans, 771 F. Supp. 1081 (W.D. Wash. 1991), aff'd, 952 F.2d 297 (9th Cir. 1991), and Portland Audubon Soc'y v. Lujan, 795 F. Supp. 1489 (D. Or. 1992), aff'd sub nom Portland Audubon Soc'y v. Babbitt, 998 F.2d 705 (9th Cir. 1993). Although the plan defined specific areas in which logging could and could not occur based on spotted owl habitat requirements, it also recognized that other species might be impacted in the areas in which future logging might be permitted. Wildlife surveys were thus required for numerous species under the plan before logging could occur in those areas. As stated by the district court: XThe plan sets aside certain reserves and requires that known sites of certain rare species be protected. But for many species, surveys are the principal means of ensuring that their viability will not be ended by logging. By requiring surveys for those species before grounddisturbing activities that are implemented after [specified dates], the plan allows measures to be taken to protect any sites that are found.(# See ONRC, __ F.Supp.2d at __, slip op. at 34. Reminiscent of the Forest Service's actions here where it adopted an internal "interpretation memo" which unilaterally modified the requirements of the TWS Settlement, see Plaintiffs' Brief Re: Partial Summary Judgment On White Pine Timber Sale, pp. 210 (filed 5/11/99) the Forest Service in the ONRC case "issued and later updated memoranda stating that timber sales were exempt from these survey requirements if environmental impact statements had been completed before the applicable cutoff dates, even if grounddisturbingh& 0*(( activities had not yet commenced." Id., slip op. at 4. Rejecting challenges such as those made by Defendants here about lack of justiciability, the district court held that "the federal defendants' decisions to authorize timber sales without conducting surveys are `final agency action[s]' for purposes of 5 U.S.C.  704," id., slip op. at 7; and it noted that "because specific timber sales are challenged in the second amended complaint, the claims are ripe."  Y Id., slip op. at 8. q Y* ԍThe ONRC court also noted that "Forest Service and BLM managers uniformly relied on these memoranda in deciding not to require [wildlife] surveys before approving the nine timber sales challenged here." Id., slip op. at 11. Similarly here, the Forest Service has relied on its annual monitoring reports and old growth status reports to claim it has satisfied Clearwater Forest Plan requirements in approving Fish Bate, White Pine, and other sales. On the merits of plaintiffs' challenges, the district court emphasized the importance of monitoring to ensure against adverse harm to many sensitive species and to fulfill the requirements of the applicable Forest Plan. Id., slip op. at 913. The court rejected the claim just as the Forest Service makes here that it must "defer" to the agency's interpretation of the plan requirements, as being contrary to the plain language of the plan. Id., slip op. at 13. Citing the 11th Circuit Martin decision, the district court held that the Forest Service's failure to conduct species monitoring was arbitrary and capricious, and enjoined the nine sales at issue. Id. In short, all three of the recent decisions directly on point Peterson, Martin, and ONRC confirm the justiciability of Plaintiffs' claims here. Plaintiffs may properly challenge the Forest Service's failure to conduct population trend monitoring under the Clearwater Forest Plan, as part of their challenges to the Fish Bate, White Pine and other timber sales which have been approved without the requisite population monitoring. And since the agency's failure to conduct monitoring arises within this context of sitespecific! 0*(( projects, Plaintiffs' claims do not suffer from the defects identified by this Court in Ecology Center v. U.S. Forest Service, CV 96142MLBE (D. Mont. 12/2/97).  Xz X C. X` `  The Fish Bate And White Pine Sales Are Justiciable (#` Defendants concede that the Fish Bate and White Pine projects are final agency actions which one or more Plaintiffs appealed administratively, and hence are justiciable under the NFMA regulations cited in their brief. However, they suggest that Plaintiffs still may not raise the issue of failure to monitor population trends for MIS old growth species, because Plaintiffs supposedly failed to exhaust their administrative remedies with respect to that particular issue. See Defs' Combined Reply Brief, at 6162, 72. However, any question as to whether Plaintiffs exhausted administrative remedies for these two sales is quickly resolved with reference to the record in this case, which encompasses the issues of old growth habitat and population trend monitoring before the Court. Plaintiffs' comprehensive appeal of the Fish Bate decision includes an entire section entitled "Sensitive Terrestrial Wildlife and Old Growth Dependent Management Indicator Species (MIS)," which discusses concerns about populations of sensitive old growth and other species, including Northern Goshawk. See Fish Bate Notice of Appeal (A.R. Fish Bate Vol. 10, Doc. 24, pp. 1820). Plaintiffs noted: "Concerns have arisen that the ability of these altered landscapes to support the continued existence of welldistributed populations of  YJ these species, as NFMA requires." Id. at 18. Jq Y! ԍ#X P07WXP#Regarding Sensitive species such as fisher, wolverine, and lynx, Plaintiffs stated: "Unfortunately, the Fish Bate FEIS and BE don't reveal knowledge of the viability of the populations or metapopulations of these species. Insufficient information is given concerning the population size and the distribution (both current and historical) of these species." Id. at 20. Plaintiff Ecology Center noted: XYour analyses for sensitive animal species are sadly lacking in content and validity. . . . Despite the fact that I sent you voluminous references to!4 0*(( scientific studies regarding goshawk and the amount and quality of nesting a foraging habitat needed [to] maintain populations of this species, you have incorporated none of the information, . . . nothing at all upon which to base a sound understanding of the likelihood of maintenance of goshawk populations within the analysis area and within the Clearwater Forest.  Id. at 20. Additionally, in a section addressing old growth habitat, Plaintiffs stated: XThe FEIS is silent on protection of lower elevation old cedar habitat type old growth. Without having addressed this issue, the Forest Service cannot assure the continued viability of those species associated with these lower elevation habitat types. . . . Such failures do not conform to [NFMA] requirements for the maintenance of native plant and animal species distributed across the National Forest.  Id. at p. 9. With regard to White Pine, Plaintiffs' appeal addressed the issues now before the court, including compliance with Forest Plan requirements for old growth habitat, and compliance with requirements of NFMA and implementing regulations. See White Pine Notice of Appeal (Sept. 24, 1997), A.R. White Pine, Vol. 12, Doc. 417. Since the White Pine project has an extended planning history, the appeal expressly incorporated all past comments by Plaintiffs, including a comment letter by Plaintiff Ecology Center on the White Pine Draft EIS, dated 12/23/96, which goes into more detail about population viability of old growthdependent species: XSpecific effects of reduction of mature timber stands in the absence of adequate old growth are best typified by an examination of the likely fate of oldgrowth MIS such as goshawk and pileated woodpecker, should the proposed timber sale take place. . . . In the White Pine project, the challenge is simple: the Forest Service must demonstrate that it can maintain oldgrowth associated MIS distributed in viable populations across, at a minimum, the Forest Service lands under its management authority. (# Letter of William Haskins, Ecology Center (Dec. 23, 1996) (A.R. White Pine, Vol. 5, Doc. 22, pp. 12).'& 0*((Ԍ In short, Plaintiffs may properly raise their claims of violations concerning old growth habitat and monitoring requirements with respect to the Fish Bate and White Pine sales.  Xz X D.X` ` Plaintiffs Have Also Challenged More Than Fish Bate and White Pine (#` As the discussion above notes, Defendants concede that Plaintiffs have properly challenged at least two justiciable final agency projects in this case the Fish Bate and White Pine timber sales.  Yn However, Plaintiffs' claims are not limited to just those two sales, as Defendants seek to persuade the Court. See Defs' Combined Brief at 16. In fact, the Complaint is broader than these two sales and encompasses other final timber sales as well which are relevant to the Old Growth and Monitoring Motions. A brief discussion of the Complaint and other sales at issue here will help make this point clear. The very first paragraph of the Complaint notes that Plaintiffs are challenging "the failure and refusal of Defendants U.S. Forest Service . . . to adhere to the terms of a prior  Y courtapproved settlement agreement, known as the `TWS Settlement,' as well as federal  YX laws including the National Environmental Policy, the National Forest Management Act, and the Clean Water Act, in their administration and management of the Clearwater National Forest. . . ." See Complaint,  1. In paragraphs 3036, the Complaint addresses the Clearwater Forest Plan and its requirements including, among others, the Forest Plan requirements for old growth habitat and MIS population monitoring. See Complaint,  3435. The Complaint also addresses the requirements of the TWS Settlement, adopted in settlement of the prior litigation challenging the Forest Plan. Id.,  3742. In paragraph 43, the Complaint alleges that "Defendants have proposed and have approved, or are in the process of approving, several major projects on the Clearwater whichA& 0*(( together and/or individually violate the letter and the intent of the TWS Settlement, as well as federal laws." Id.,  43. Specifically listed in  43 are the Fish Bate and White Pine sales. Also listed in  43 are the White Sand Creek project, which the Forest Service withdrew because of this lawsuit; and the North Lochsa Face project, which was in draft EIS  Y form at the time of the Complaint, and for which a final EIS was recently issued. Id. _q Ym ԍWhile North Lochsa Face is not yet final, the issues presented in this case including the Forest Service's misapplication of the TWS Settlement, its violations of old growth habitat requirements, and its failure to monitor MIS species are all applicable to North Lochsa Face, based on the analysis in the Draft and Final EISs. Plaintiffs have included it in their Complaint to provide notice of their intent to seek judicial review over it when final; and to provide further factual basis for their claimed violations, such as the fact that the Forest Service plans to log more old growth habitat as part of that project.  Subsequent paragraphs of the Complaint makes clear that Plaintiffs' claims are not limited only to those sales listed in  43. Paragraph 44, for instance, alleges that "[t]here are numerous other timber sales or similar projects which have been approved by Defendants or which are pending," and which violate the TWS Settlement "and/or federal laws, as Plaintiffs will prove at trial herein." Id.,  44. In  45, the Complaint alleges that in "evaluating these projects and other actions, Defendants have frequently failed or refused to account for cumulative impacts of the proposed actions along with present and past management actions" including "their impacts upon fish and wildlife habitat and populations." Id.,  45. The Complaint also alleges that "[d]espite the requirements of the Forest Plan concerning management of the Clearwater to maintain old growth habitat, . . . Defendants have failed to meet applicable standards and guidelines, and in fact have allowed management actions to proceed which have caused existing fieldverified old growth habitat to drop below the Forest Plan requirements." Id.,  48. Likewise,  51 alleges that populations of many species are declining but the Clearwater has failed to monitor their trends. J 0*((ԌBecause the Federal Rules of Civil Procedure require only "notice pleading," see F.R.Civ.P. 8, these allegations suffice to make clear at least initially in this litigation that Plaintiffs' claims are not limited only to the specific sales named in the Complaint. In later filings, Plaintiffs have provided more detail on these claims. For example, in their prediscovery disclosures filed pursuant to the District of Montana Local Rules, Plaintiffs provided extensive information concerning projects subject to their claims. See Plaintiffs' PreDiscovery Disclosure Statement (filed 12/19/98). These include specific identification of a large number of "salvage" and "categorical exclusion" projects, for which Plaintiffs claim the Forest Service has violated the TWS Settlement, NEPA, NFMA, and other laws. See id., pp. 1415. It also includes a listing of "major timber sale projects," which include those identified by name in the Complaint (i.e., White Sand Creek, Fish Bate, North Lochsa Face, and White Pine), but also others. Id., pp. 1521. For these other projects, the disclosures state:ppG XOther major projects: In addition to the foregoing sales, which are specifically identified in the Complaint, Plaintiffs intend to challenge other projects, for which final decisions have been rendered or for which it appears that the Forest Service intends to issue additional major timber sale projects in the near future, which Plaintiffs believe will violate provisions of the TWS Settlement Agreement and/or federal laws in various ways. These projects include, but are not necessarily limited to, the following:  ` `  Winchester/Crooked Fork; ` `  Brushy Fork; ` `  Spruce Creek; ` `  Beetle Spruce Too; ` `  Shoot Creek; ` `  Lower Eldorado; ` `  Musselshell; ` `  Spruce Moose; ` `  Twin Basin; ` `  South Sheep; ` `  Clarke Mountain;& 0*((Ԍ` `  West Fork Potlatch; ` `  WepahPup; ` `  Yellow Pine Restoration; and ` `  Cabin Fever P. Pine. XSee Doc. Nos. CNF04, PA13, PO71 & 72, PO80, PR05.   Id., pp. 1920. These prediscovery disclosures, of course, serve the purpose of "fleshing out" claims in Plaintiffs' Complaint, within the letter and spirit of the local rules. See District of Montana Local Rule 2005(a). In their Old Growth and Monitoring Motions, Plaintiffs have further informed Defendants about specific projects in addition to Fish Bate and White Pine which violate the Forest Plan requirements for old growth habitat and population trend monitoring, respectively. For example, Plaintiffs' Separate Statement of Uncontroverted Facts Re: Old Growth Violations addresses the following projects in addition to Fish Bate, White Pine, and North Lochsa Face which would further log old growth or nearold growth habitat: Crooked Fork/Winchester; Musselshell; Full Quart Salvage; Molly Mud Salvage; Relaskop Salvage; Sylvan/Orogrande Salvage; Salt Lick; and Gezel. See Plaintiffs' Separate Statement of Uncontroverted Facts Re: Old Growth Violations (filed 1/15/99),  7188. These sales were also identified in Plaintiffs' supporting brief, see Plaintiffs' Opening Brief In Support Of Motions for Partial Summary Judgment and Injunctive Relief Re: Old Growth Violations (filed 1/15/99), p. 9; and Plaintiffs submitted agency decision documents relating to these projects to the Court. See Declaration of Laird J. Lucas Re: Old Growth Violations (filed 1/15/99). And in their supplemental fact statement on the Old Growth motion, Plaintiffs established that the Shoot Creek project was a final, justiciable decision which would further log old growth habitat. See Plaintiffs' Supplemental Fact Statement Re: Old Growth Violations (filed 5/11/99),  39; Declaration of William Eddie (filed 5/11/99), Exh. 9 (Shooth& 0*(( Creek Decision Notice/Finding of No Significant Impact and Disposition of Appeal). Defendants argue that these projects are still not "justiciable" because they are either logged, were not appealed by any Plaintiff, were Rescissions Act sales, or are not yet final. See Defs' Combined Brief, p. 14, n. 6. Defendants are correct that certain sales were not appealed by any Plaintiff; but whether other sales have been fully logged is a factual question which cannot yet be resolved on the record before the Court. At a minimum, even if Defendants are right in these claims, it is nevertheless clear that final agency decisions have been rendered, appeals filed by one or more Plaintiffs, and those appeals denied by the  Y Regional Forester, on at least the following projects (in addition to Fish Bate and White Pine) which have not been logged: (1) Shoot Creek: Decision Notice signed Sept. 1998; appealed by Plaintiffs Friends of Clearwater and Ecology Center; appeal denied by Regional Forester on December 17,  Y 1998. See Eddie Decl. (filed 5/11/99), Exh. 9.5 q YV ԍNotably, in appealing the Shoot Creek sale, Plaintiffs expressly stated: #X P47WXP# XThe Forest Service must address . . . both habitat and population trends for MIS (36 CFR 219.13). For plans such as the Shoot Cr. timber sale, "planning alternatives must be stated and evaluated in terms of both amount and quality of habitat and of animal population trends of the management indicator species" (36 CFR 219.19). Appellants find that the Forest Service has summarily excused itself from complying with these requirements. . . .(# Friends of Clearwater, Ecology Center et. al., Appeal of Shoot Creek Decision (Oct. 26, 1997). Thus, Plaintiffs have plainly exhausted their administrative remedies fully with respect to Shoot Creek.5 (2) Musselshell: The Musselshell Ecosystem Management Project Record of Decision was signed on January 20, 1999. See Defs' Old Growth Separate Statement,  70; Defendants' Old Growth Appendix Tab F (both dated March 16, 1999). Plaintiffs Friends of| 0*(( the Clearwater, The Ecology Center, The Lands Council, and Idaho Conservation League appealed; and the Regional Forester denied their appeal on June 9, 1999. See Supplemental  Yz Declaration of William M. Eddie Re: Monitoring Violations, filed herewith, Exh. 2. vzq Y ԍ In their appeal, Plaintiffs expressly challenged the Clearwater's compliance with NFMA population viability requirements, as well as population trend monitoring requirements of the Forest Plan. Plaintiffs also challenged the project on grounds of old growth habitat requirements of the Clearwater Forest Plan. See Friends of Clearwater, Ecology Center et. al., Appeal of Musselshell Decision (April 29, 1999) (Suppl. Eddie Decl., Exh. 2).  (3) Winchester/Crooked Fork: The Winchester timber sale was analzyed in the 1993 Crooked For Environmental Assessment, and approved on December 20, 1993. See Lucas Old Growth Decl. (filed 1/15/99),  4; Plaintiffs' Old Growth Appendix (filed 1/15/99), Tab 18; Federal Defendants' Statement of Uncontroverted Facts For Federal Defendants' Motion for Summary Judgment on Old Growth (dated March 16, 1999) (hereafter, "Defs' Old Growth Separate Statement"),  67. Plaintiff Ecology Center appealed the Winchester/Crooked Fork decision, and that appeal was denied April 13, 1994. See Defs' Combined Brief, p. 14, n. 6. (4) Molly Mud: The decision to proceed with Molly Mud Salvage was made on January 5, 1998, and was appealed by Plaintiffs, which was denied by the Regional Forester. See Defs' Old Growth Separate Statement (March 16, 1999),  71; Defs' Old Growth Appendix Tab I. Because these projects are final, were appealed administratively, and the appeals were denied by the Regional Forester, under Defendants' own analysis of their appeals regulations and APA requirements these are plainly "justiciable" before this Court. See Defs' Combined  YJ Brief, at 1317. The only objection they have is that the sales are not expressly named in theJ 0*(( Complaint. However, since Plaintiffs have adequately put Defendants on notice about their claims through their Complaint, PreDiscovery Disclosures, and summary judgment motions set forth above, this objection is not well taken; and the Court may properly consider these additional four sales, at a minimum, along with Fish Bate and White Pine in addressing  Y Plaintiffs' Old Growth and Monitoring motions.8vq Ym ԍPlaintiffs will file an amended complaint, if necessary, to include these sales and update their allegations; and hereby move for leave to file an amended complaint if so desired by the Court. Under the circumstances, leave to amend should clearly be granted under the liberal standards of F.R.Civ.P. 15. See Forman v. Davis, 371 U.S. 178, 182 (1962). However, Plaintiffs believe it is unnecessary to amend the complaint at this time, and will await the Court's guidance on whether an amendment is necessary.8 In summary, Plaintiffs have brought both their Old Growth and Monitoring motions within the context of at least six specific, justiciable sales approved by the Forest Service. This is precisely the path laid out in Ohio Forestry and Lujan I to follow; and indeed, it is indistinguishable from the Peterson, Martin, and ONRC cases discussed above, all of which found monitoring violations under a similar procedural posture. Accordingly, Plaintiffs' claims that the Forest Service has violated the Clearwater Forest Plan, and hence NFMA and the APA, with respect to both population monitoring requirements and old growth habitat requirements, are properly before this Court for resolution.  X X II.X` ` THE FOREST SERVICE HAS VIOLATED POPULATION  X MONITORING REQUIREMENTS  (#` On the merits of Plaintiffs' claims, Defendants do not even attempt to rebut Plaintiffs' showing that the Forest Service has not conducted population trend monitoring, as required by the Clearwater Forest Plan. Instead, Defendants avoid this claim by arguing that the Plan  Yv only "requires that old growth habitat be monitored to satisfy Section 219.19(a)(6)" of the Forest Service's NFMA regulations, 36 C.F.R.  219.19(a)(6). They also contend that4 0*(( population monitoring is not required under  219.19(a)(6), based on the Ninth Circuit's decision in Inland Empire v. USFS, 88 F.3d 754 (9th Cir. 1996). See Defs' Combined Brief, at 53. There are two mistaken premises here. First, Plaintiffs' claim is not that population monitoring is required only by  219.19(a)(6), but more particularly that population trend  Y monitoring is expressly required for specific species by the Clearwater Forest Plan here, and thus is mandatory under the NFMA "consistency" requirement, 16 U.S.C.  1604(i) and 36 C.F.R.  219.10(e). Second, the Defendants' suggestion that the Forest Plan only requires  Y monitoring or maintaining old growth habitat , and does not require MIS population trend monitoring, is directly rebutted by the plain language of the Plan itself. Both these points are explained in depth below.  X  X A.` ` Plaintiffs Claim Forest Plan Violations  As Plaintiffs thought they made clear in their opening papers, the Forest Service's failure to conduct population trend monitoring on the Clearwater National Forest violates two separate requirements: (1) the requirements of the Clearwater Forest Plan, enforceable under the NFMA consistency provision, that MIS population trends are to be monitored and  Y reported, as identified at the outset of this brief;!vq YJ ԍAs noted, this requirement expressly states that "Populations Trends of Indicator Species" are to be monitored, including population trends for the designated oldgrowth Management Indicator Species (MIS) of pileated woodpecker, goshawk, and pine marten; that these monitoring results are to be reported every five years; and that the monitoring requirements apply to all "management areas" of the Forest except "A5" areas. See Clearwater Forest Plan, pp. IV13 to IV14 (Tables IV1 & IV2).! and (2) the separate requirement of the NFMA regulations that "population trends of the management indicator species will be monitored and relationships to habitat changes determined." See 36 C.F.R.  219.19(a)(6);K0*(( Defendants' argument that Inland Empire bars Plaintiffs' monitoring claims fails to  Y recognize the dual nature of those claims here. Inland Empire addressed only the contention that the Forest Service violated the NFMA monitoring regulations under 36 C.F.R.  219.19(a)(6) on the Kootenai National Forest not Forest Planbased claims arising from the separate NFMA "consistency" requirement, as Plaintiffs raise here. See Inland Empire, 88 F.3d at 75459 (noting that plaintiffs claimed only violations of  219.19 and NEPA, and addressing  219.19 claim at length). See also Neighbors of Cuddy Mtn., 137 F.3d 1372, 1377 (9th Cir. 1998); Friends of Southeast's Future v. Morrison, 153 F.3d 1059, 106771 (9th Cir. 1998) (both addressing NFMA consistency requirement). This distinction between claims arising under the Forest Plan/NFMA consistency requirement, and the NFMA population viability/monitoring regulations set forth in  219.19, was expressly recognized in Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 115354 (9th Cir. 1998). Although the Ninth Circuit there held against the plaintiffs challenging the Forest Service's failure to conduct monitoring under both  219.19(a)(6) and the Targhee Forest Plan, the Court recognized that two separate claims were presented one under  219.19, and the other under the Forest Plan/NFMA consistency requirements and accordingly it dealt with them separately. Id. Defendants thus seek to ignore Plaintiffs' monitoring claims based on the Clearwater Forest Plan provisions, by attempting to reduce them to solely  219.19 claims. To the extent that Plaintiffs' claims do arise under  219.19, neither are Defendants correct that Inland Empire or Idaho Sporting Congress foreclose those challenges in this case. As explained in Plaintiffs' opening brief, Inland Empire upheld the Forest Service's use of habitat as a proxy for wildlife monitoring required under  219.19 under the specific facts of that case, in which the Forest Service had conducted studies of the amounts of?&0*(( habitat which the respective MIS species would require called "habitat viability analyses" and further demonstrated that sufficient habitat was provided for the species as required by those studies. See Inland Empire, 88 F.3d at 75761. Under those facts, the Ninth Circuit agreed that the Forest Service's showing of sufficient existing habitat provided "an alternative method of population analysis," and hence satisfied the population viability and monitoring requirements of  219.19. Id. Likewise, in Idaho Sporting Congress, the Ninth Circuit followed Inland Empire in holding that using habitat there "as a proxy for population" was not arbitrary and capricious. See 137 F.3d at 115455. However, the Ninth Circuit cautioned that on remand, the Forest Service must "demonstrate[] no appreciable habitat disturbance" from sediment due to the proposed timber sale, in order to meet its burden of demonstrating adequate habitat under the Inland Empire analysis. Id. The facts here are distinctly different from those in Inland Empire and Idaho Sporting Congress. The Clearwater National Forest lacks the kind of detailed "habitat viability analysis" seen in Inland Empire; and as Plaintiffs' Old Growth Motions establish, it also cannot assure that adequate habitat exists for old growth MIS species, which was the fundamental underpinning for the Ninth Circuit's holdings in both Inland Empire and Idaho  Y Sporting Congress.Wq Y ԍOf course, as discussed in Plaintiffs' opening brief, the Cuddy Mtn. decision squarely places on the Forest Service the burden of demonstrating consistency with Forest Plan requirements when proceeding with sitespecific projects, a burden it cannot meet here. See 137 F.3d at 137778.W Thus, neither case forecloses Plaintiffs' claims that the Forest Service has violated the NFMA population monitoring requirement under 36 C.F.R.  219.19. And certainly, neither case prevents Plaintiffs from demonstrating that the Forest Service has!40*(( violated the separate NFMA consistency requirement, by failing to conduct the population trend monitoring required by the Clearwater Forest Plan.  Xz  B.` ` Defendants Cannot Substitute Habitat For Population Monitoring Under  Xc The Clearwater Forest Plan (#` In seeking to defend their failure to conduct population trend monitoring in approving the Fish Bate and White Pine sales, Defendants point to their studies of the project areas and conclusion that sufficient habitat would be retained in each area to maintain adequate populations of the MIS species. See Defs' Combined Reply Brief, at 6571 (White Pine) and 7275 (Fish Bate). However, this attempt to use project area habitat in order to excuse the lack of population trend monitoring fails under the plain language of the Clearwater Forest Plan itself.  Y; The Clearwater Forest Plan is unambiguous in requiring both that specified amounts of old growth habitat must be maintained on the forest (10% forestwide, and 5% per each  Y 10,000 acre compartment), and that population trend monitoring and reporting be conducted for various MIS species. The old growth habitat requirements are set forth in Chapter II, Section II.5 of the Plan, under the heading of "Wildlife and Fish," and are part of several different habitat requirements pertaining to wildlife and fish. See Clearwater Forest Plan, pp. II23 and II24. In a separate chapter Chapter IV, "Implementation" the Forest Plan specifies "Monitoring and Evaluation" requirements, including the requirement at issue here that the Forest Service must conduct population trend monitoring of MIS species. Id., p. IV9 and Tables IVI & IV2. Here the Plan states: XThe monitoring requirements for this Forest Plan are outlined in Table IV1. These requirements address NFMA requirements, the items to be monitored, expected precision and reliability, and reporting period. Most of the monitoring items are applicable to specific management areas. A listing of applicable monitoring items is summarized in Table IV2. 1'0*((ԌId., p. IV9. As noted at the outset of this brief, Table IV1 (as referenced here) states under "Actions, Effect, Or Resources To Be Measured" that "Population Trends of Indicator Species" are to be monitored, and it specifies for "pileated woodpecker and goshawk" that the "expected precision" of such monitoring is "high", "expected reliability" is "low," and "reporting time" is "5Yr Rpt." Id., p. IV13 to IV14. For "pine martin," the population trend monitoring requirement is stated as "expected precision moderate," "expected reliability moderate," and "reporting time 5Yr Rpt." Id. Table IV2 further provides that the population trend monitoring requirements for "woodpecker/goshawk" and for "pine martin" apply in all management areas of the Clearwater National Forest, with the exception of "A5" areas (i.e., picnic areas, campgrounds, and visitor information sites). Id., p. IV16. The fact that these population trend monitoring requirements are spelled out in an entirely different section of the Clearwater Forest Plan than the old growth habitat requirements underscores their separateness. In adopting the Plan, the Forest Service  Y: committed itself to fulfilling both sets of requirements maintain old growth habitat, and monitor MIS wildlife population trends. It cannot now evade one set of those clear requirements, for population trend monitoring, by claiming that it need only fulfill the other particularly when it is not even meeting the Forest Plan's 10% forestwide and 5% per compartment old growth habitat minimum requirements. It is, of course, the plain language of the Forest Plan which this Court must enforce, not a litigationdriven "interpretation" advanced by the agency which contradicts the Plan's language. See French Hosp. v. Shalala, 89 F.3d 1411, 1416 (9th Cir. 1994); Pfaff v. US Dept. of HUD, 88 F.3d 739, 748 (9th Cir. 1996); Young v. Reno, 114 F.3d 879, 883 (9th&0*(( Cir. 1997). By contending here that they need only provide adequate habitat for old growth MIS species in the Fish Bate or White Pine project areas, Defendants would entirely eliminate the requirements of Chapter IV in the Clearwater Forest Plan concerning population trend monitoring. The Court must reject this attempt to rewrite the Forest Plan in a way that the Forest Service would now find more palatable, and which would allow it to proceed with logging on the Fish Bate, White Pine, and other sales without having conducted requisite population trend monitoring. Finally, the failure to monitor population trends for MIS old growth species on the challenged sales is potentially significant for these species. Together, the Fish Bate and White Pine timber sales will destroy some 700 acres of northern goshawk and pileated woodpecker habitat. See Plaintiffs' Separate Statement of Uncontroverted Facts Re: Old Growth Violations (filed Jan. 15, 1999),  7378. All told, some 2500 acres of old growth in the Clearwater National Forest await logging. See Plaintiffs Separate Statement Re: Monitoring Violations (filed May 11, 1999),  44. Yet the Forest Service essentially has no  Y: clue how this might affect old growth MIS species it has acquired essentially no information about existing populations or population trends of old growthdependent wildlife species. Nevertheless, in analyzing the Fish Bate, White Pine, and other timber sales, the Forest Service concluded that the planned logging in these species' habitat would not impact their populations. See Def's Combined Reply Brief, at 67, 73. Without forestwide population trend analysis as required in the Forest Plan and without sufficient old growth habitat maintained to even meet Forest Plan requirements it is impossible for the Clearwater to make any determination of whether viable populations exist of northern goshawk, pileated woodpecker, and pine marten, or how destruction of their habitat might&0*(( influence those populations. Indeed, under Defendants' own definition, a "trend" means "measurements or determinations over time." See Second Declaration of Richard Jones (filed 7/27/99),  4. Defendants cannot seriously argue that the onetime local habitat reviews undertaken for the proposed logging activities on specific sales, like Fish Bate or White Pine, amount to measurement of population trends, since they evaluated neither "populations" nor any "trends." With respect to northern goshawk occupation of the Fish Bate area, for example, all the Forest Service can say is that they found one abandoned nest in the area, and that they performed fruitless "calling surveys" along roads. See Def's Combined Reply Brief, at 75. What possible conclusions could anyone draw about changes to goshawk populations over time from this information, particularly on a forestwide basis? The answer is: none, because the necessary population trend data is missing. The potential harms caused by the Forest Service's failure to conduct population trend monitoring were underscored in the Peterson, Martin, and ONRC cases cited above. Indeed Peterson affirmed the district court conclusion that "[t]he Forest Service's failure to adequately inventory and monitor may be causing permanent and substantial damage to the productivity of the land." Peterson, __ F.3d. at ___, slip op. at p. 7, citing 974 F.Supp. at 912. Here, the Forest Service plans to proceed with extensive logging in habitat for goshawk, pileated woodpecker, and pine martin, yet it has conducted no population trend monitoring for these species at all, as required by the Clearwater Forest Plan. It has no basis for knowing whether these projects particularly in their cumulative impacts with other past, present and future sales will harm these indicator species. Because the agency has violated the express requirements of the Clearwater Forest Plan, and hence the NFMA&0*(( consistency requirement, partial summary judgment should be entered for Plaintiffs.  Y  G7 CONCLUSION ă For the foregoing reasons, Plaintiffs ask that partial summary judgment be entered in their favor on the Forest Service's violations of the Clearwater Forest Plan and NFMA relating to its failure to monitor population trends of old growthdependent wildlife species. DATED: September 6, 1999 hh2Respectfully submitted, ` `  #*hh2ROSSBACH BRENNAN, P.C. ` `  #*hh2LAND AND WATER FUND OF THE ROCKIES(#(#k ` `  #*hh2__________________________________ ` `  #*hh2By: Laurence ("Laird") J. Lucas ` `  #*hh2Attorneys for Plaintiffs