Conservation Congress v. United States Forest Service et al

Filing 121

ORDER signed by District Judge John A. Mendez on 2/16/2017 ORDERING that the Court GRANTS Plaintiff's 103 Motion for Summary Judgment on the First Claim for Relief (Failure to Take a Hard Look) and the Fourth Claim for Relief (Failure to Develop a Reasonable Range of Alternatives) of the Second Amended Complaint. ECF No. 65. The Court DENIES the motion with respect to the remaining Claims for Relief and thus GRANTS 106 Defendants' and 109 Intervenor's Cross Motions fo r Summary Judgment on the Second, Third, Fifth, Sixth, Seventh, Eighth, and Ninth Claims for Relief, and the Supplemental Complaint, ECF No. 102. The Court will issue a separate Order regarding the relief/remedy to be imposed after receipt and consideration of the parties' supplemental briefs on this issue. (Jackson, T)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CONSERVATION CONGRESS, 11 Plaintiff, 12 13 14 v. UNITED STATES FOREST SERVICE, UNITED STATES FISH AND WILDLIFE SERVICE, 15 16 17 No. 2:13-cv-01977-JAM-DB ORDER RE PLAINTIFF’S MOTION AND DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT Defendants, & TRINITY RIVER LUMBER COMPANY, 18 Defendant Intervenor. 19 20 21 And yesterday the bird of night did sit Even at noon-day upon the marketplace Hooting and shrieking. 22 - William Shakespeare, Julius Caesar, act 1, sc. 2. 23 This litigation concerns the continuing viability of the 24 revered Northern spotted owl (“NSO”) and whether it may soon 25 portend its own demise at the hands of its protector, the federal 26 government. 27 execute the Smokey Project (“Project”), a proposal to administer 28 fuel and vegetative treatments intended to further habitat and The United States Forest Service (“USFS”) plans to 1 1 fire management goals in the Mendocino National Forest (“MNF”) 2 and contribute to the MNF’s timber production goals. 3 engaged with interested parties as it developed the Project, 4 leading to its decision to adopt the proposal. 5 Congress (“Plaintiff”) participated throughout that process, 6 advocating for the NSO and its old-growth habitat. 7 challenges the USFS’s final decisions, as well as the Fish and 8 Wildlife Service’s (“FWS”; collectively “Defendants”) 9 contributions to the end result. The USFS Conservation It now As described below, the Court 10 agrees that the USFS failed to meet some of its statutory 11 obligations. 12 13 I. FACTUAL BACKGROUND The USFS began scoping for the Smokey Project (“Project”) in 14 December 2009. 15 of comments the following March and continued communicating with 16 the USFS over the next year. 17 3627, 3599–3626, FS-3585. 18 Draft Environmental Assessment and opened the 30-day Objection 19 Period. 20 the USFS and Plaintiff had a conference call concerning the 21 project, followed by Plaintiff’s submission of its first written 22 Objections in August, which were followed by an in person 23 Objection Resolution meeting. 24 See FS-3643. FS-1727, 1645. Plaintiff submitted its first set USFS Administrative Record (“FS”)- In July 2010, the USFS released the The Administrative Record indicates that FS-1636, 1557, 1546. The USFS also consulted with the FWS about the Project’s 25 impacts on endangered and threatened species. 26 early 2011, the agencies conferred over whether or not the 27 Project would adversely affect the NSO. 28 Service Administrative Record (“FWS”)-1–107; FS-18874–94. 2 From Fall 2009 to See Fish and Wildlife This 1 determination dictates whether a formal—and more extensive— 2 consultation between the agencies is required pursuant to the 3 Endangered Species Act. 4 that the Project “may affect, [and is] likely to adversely 5 affect” the NSO (a “MALAA” determination), FWS-1162–64, while the 6 USFS maintained that a “may affect, not likely to adversely 7 affect” determination—which would not require formal 8 consultation—was appropriate for the Project, FS-18882–86; 50 9 C.F.R. § 402.14. See infra Part III.D. The FWS concluded Due to this disagreement, the agencies elevated 10 the Project to a Level 2 team for review. 11 prepared and submitted a Final Biological Assessment (“BA”) for 12 the FWS to review and requested formal consultation on July 5, 13 2011. 14 the USFS sent over the BA, the agency had also concluded that an 15 MALAA finding for the NSO was appropriate due to the Project’s 16 potential impact on prey species. 17 FWS-87. FS-18680, 18872; 50 C.F.R. § 402.14(c)(5). The USFS By the time FS-18872. While the Project was still under review, field examinations 18 revealed a root disease infection that required Project 19 modification. 20 stumps in order to prevent the spread of the disease. 21 The agency reopened scoping for the Project in February 2012 to 22 address three substantive changes to the Project, including the 23 use of borax and the change in the USFS’s determination that the 24 Project warranted a MALAA finding. 25 its second set of scoping comments at the end of February, which 26 “incorporate[d] by reference [its] original comments as well as 27 [its] original Objection comments (attached).” 28 FS-18857. The USFS decided to apply borax to tree FS-3580. FS-3580. Plaintiff submitted FS-3545. The FWS transmitted its Biological Opinion (“BiOp”) to the 3 1 USFS on March 15, 2012. 2 Project is not likely to jeopardize the continued existence of 3 the NSO rangewide or within the recovery unit. 4 based this conclusion on the fact that no NSO habitat loss was 5 expected and habitat functionality would be maintained. 6 18788. 7 harassment/mortality in two home ranges—were expected to be short 8 term, returning back to normal within two to three years post- 9 implementation. FS-18680. The BiOp concludes that the FS-18787. It FS- The expected impacts—degradation of some habitat and FS-18788. It also concluded that the Project is 10 not likely to result in adverse modification of the NSO critical 11 habitat, and that habitat degradation was not expected to impede 12 the recovery function of critical habitat rangewide or within the 13 province. 14 accompanied the BiOp. 15 imposed a Limited Operating Period (“LOP”) from February 1st to 16 September 15th in certain units in accordance with recent, 17 protocol-level survey results. 18 the conservation measures already pleaded in the BA, which the 19 USFS must implement. 20 “Monitoring Requirements” that require the agency to document the 21 progress of the action and its effects on the NSO to the FWS in 22 the form of annual monitoring reports containing a minimum of the 23 following information: “progress/status of the proposed project, 24 amount and type of habitat removed or modified, northern spotted 25 owl survey results, and any changes to project implementation not 26 discussed in the biological assessment.” 27 28 FS-18788–89. An Incidental Take Statement (“ITS”) The ITS, under “Terms and Conditions,” FS-18696. FS-18792. This LOP supplemented Additionally, the ITS imposes FS-18792–93. The USFS sent out copies of the Draft Final EA and Appendices mid-June 2012 and opened up the second 30-day 4 1 Objection Period. 2 objections. 3 published the Final Environmental Assessment and the Decision 4 Notice. 5 approximately 6400 acres and will include fuel treatments through 6 implementation of Strategically Placed Land Area Treatments 7 across the landscape, timber harvest in matrix lands, and 8 improvement of plantations, meadows, hardwood and late 9 successional habitat. FS-21, 23. FS-1365–1436. FS-1346, 1291. FS-10, 19. Plaintiff submitted additional On August 29th and 30th the USFS In its final form, the Project will treat The Decision Notice concluded 10 that the Project’s actions will not have a significant effect on 11 the quality of the human environment, thus the agency would not 12 be preparing an environmental impact statement. 13 Forest Supervisor decided to implement the proposed Project, 14 which incorporates the terms and conditions of the ITS. 15 FS-12. The FS-11. On December 4, 2012, the FWS published a final, revised rule 16 designating critical habitat for the NSO (“2012 Critical Habitat 17 Rule”). 18 Project, USFS issued a Supplemental Biological Assessment. 19 Supplemental BA concluded that the new finding with respect to 20 NSO critical habitat is MALAA due to short-term adverse effects 21 to NSO nesting/roosting and foraging habitat. 22 The USFS reinitiated consultation with the FWS on that basis. 23 FS-19089. 24 Project is not likely to jeopardize the NSO nor adversely modify 25 or destroy its designated critical habitat. FS-18996. 26 FS-19091. Because the rule affected most of the The FS-19089, 19139. In the resulting 2014 BiOp, the FWS concluded that the The USFS reinitiated consultation yet again, in January 27 2015, after surveyors discovered NSOs in a new location in the 28 Project area. FS-19387. This led to the designation of two new 5 1 activity centers. 2 Supplemental BA at the end of May 2015 and the FWS issued its 3 BiOp, with the same jeopardy and adverse modification 4 determination, on July 24, 2015. 5 2015, the USFS published a Supplemental Information Report, 6 summarizing the agency’s “analysis supporting [its] determination 7 that there is no need for supplemental NEPA analysis arising from 8 the new circumstances and information related to the Project.” 9 FS-1. FS-19348. The agency sent the FWS its Second FS-19243–79. On November 30, 10 While consultation on the Project was ongoing, the FWS 11 published the Revised Recovery Plan for the Northern Spotted Owl 12 (“2011 RRP”). 13 actions and criteria that are considered necessary to recover 14 listed species.” 15 one day after USFS biologists signed off on the Project’s BA—and 16 replaced the 2008 version of the plan. 17 frequently referenced in agency documents and is central to some 18 of Plaintiff’s claims. 19 20 FS-4230. “Recovery plans describe reasonable FS-4231. II. The 2011 RRP came out June 28, 2011— FS-4231. The 2011 RRP is PROCEDURAL BACKGROUND Plaintiff filed its Complaint against the USFS and FWS over 21 the Project on September 23, 2013, alleging violations of the 22 National Environmental Policy Act (“NEPA”), the Endangered 23 Species Act (“ESA”), the National Forest Management Act (“NFMA”), 24 and the Administrative Procedure Act (“APA”). 25 case was twice stayed as the USFS reinitiated consultation with 26 the FWS at the end of 2013 and again in 2015. 27 The second stay terminated with the completion of consultation in 28 July 2015 and Plaintiff filed its Second Amended Complaint, the 6 ECF No. 1. The ECF Nos. 15 & 53. 1 operative complaint in this case, that October. 2 65. 3 (“Intervenor”) moved to intervene as a defendant-intervenor in 4 this case, which the Court allowed after the second stay lifted. 5 ECF Nos. 28 & 63. 6 purchased the Smokey Stewardship Project in order to harvest the 7 Project trees and process the logs into lumber through its local 8 mill. 9 Court’s leave, Plaintiff filed a Supplemental Complaint on July ECF Nos. 57 & In February 2015, Trinity River Lumber Company Intervenor is a family owned business that See Declaration of Dee Sanders, ECF No. 30. With the 10 26, 2016, based on the Supplemental Information Report that 11 issued after Plaintiff had filed the Second Amended Complaint. 12 ECF Nos. 100, 101, & 102. 13 The parties filed their Motion and Cross-Motions for Summary 14 Judgment in July and September of 2016, respectively. 15 103, 106, & 109. 16 Declaration by Tonja Chi, which Defendants moved to strike. 17 No. 103-4 & 107. 18 would not request the Court to consider extra-record declarations 19 in the case, the Court granted Defendants’ motion to strike the 20 declaration. 21 Defendants’ unopposed motion to strike paragraphs 11 and 12 from 22 Denise Boggs’ Declaration and paragraph 10 from Ellen Drell’s 23 Declaration. 24 ECF Nos. In support of its motion, Plaintiff submitted a ECF Due to Plaintiff’s prior representation that it ECF No. 118. Additionally, the Court granted Id. The Court held a hearing on the Motion and Cross-Motions for 25 Summary Judgment on February 2, 2017. 26 under submission and ordered further briefing on the question of 27 remedies. 28 /// ECF No. 120. 7 The Court took the matter 1 III. OPINION 2 A. Standard of Review 3 Because Plaintiff’s claims arise under Acts that do not 4 provide a separate standard for review, the claims are reviewed 5 under the standards of the APA. 6 Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). 7 court does not employ the usual summary judgment standard in this 8 context because, rather than resolving facts, the court is to 9 determine whether or not “the evidence in the administrative See San Luis & Delta-Mendota A 10 record permitted the agency to make the decision it did.” 11 for Sierra Nevada Conservation v. U.S. Forest Service, 832 F. 12 Supp. 2d 1138, 1148 (E.D. Cal. 2011). 13 uphold an agency’s decision unless it is arbitrary, capricious, 14 an abuse of discretion, or otherwise not in accordance with law. 15 Jewell, 747 F.3d at 601; 5 U.S.C. § 706(2). 16 Court’s] inquiry must be thorough, the standard of review is 17 highly deferential.” 18 omitted). Ctr. Thus, this Court will “Although [the Id. (citations and quotation marks 19 B. Standing 20 Defendants and Intervenor do not challenge Plaintiff’s 21 standing to pursue its claims. Plaintiff submitted declarations 22 from three of its members, including Executive Director Denise 23 Boggs, in order to establish standing. 24 Boggs (“Boggs Decl.”), ECF No. 103-1; Declaration of Douglas 25 Bevington (“Bevington Decl.”), ECF No. 103-2; Declaration of 26 Ellen Drell (“Drell Decl.”), ECF No. 103-3. 27 states that they visit the relevant area of the Mendocino 28 National Forest for recreational purposes, including looking for 8 Declaration of Denise Each declarant 1 NSOs. 2 Drell Decl. at ¶¶ 2, 3, 5. 3 specific plans to visit the area in the future. 4 ¶ 8; Bevington Decl. at ¶ 2; Drell Decl. at ¶ 6. 5 concerned that the Project will harm the forest and the NSO and 6 relies on Plaintiff to litigate those interests on their behalf. 7 Boggs Decl., passim; Bevington Decl. at ¶¶ 5–8; Drell Decl. at 8 ¶ 7–8. 9 standing. Boggs Decl. at ¶¶ 4–6, 9; Bevington Decl. at ¶¶ 2, 6, 7; Each declarant has general and Boggs Decl. at Each is The Court finds these facts sufficient to give Plaintiff See Conservation Cong. v. U. S. Forest Service, No. 10 2:15-00249, 2016 WL 727272, at *2 (E.D. Cal. Feb. 24, 2016) 11 (finding that Conservation Congress had standing); Cottonwood 12 Envtl. Law Ctr. v. U.S. Forest Service, 789 F.3d 1075, 1079–80 13 (9th Cir. 2015) (describing the standard). 14 C. NEPA Claims 15 The National Environmental Policy Act is our basic national 16 charter for protection of the environment. 40 C.F.R. § 1500.1. 17 NEPA “has twin aims. 18 obligation to consider every significant aspect of the 19 environmental impact of a proposed action. 20 that the agency will inform the public that it has indeed 21 considered environmental concerns in its decisionmaking process.” 22 Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1066 (9th Cir. 23 2002) (internal quotation marks and citations omitted). 24 does not impose substantive environmental obligations; “[r]ather, 25 it establishes ‘action-forcing’ procedures that require agencies 26 to take a ‘hard look’ at environmental consequences.” First, it places upon a federal agency the Second, it ensures NEPA Id. 27 Under NEPA, federal agencies must provide a detailed 28 environmental impact statement (“EIS”) for every major federal 9 1 action significantly affecting the quality of the human 2 environment. 3 contemplating such an action may first prepare an environmental 4 assessment (“EA”) in order to determine whether an EIS is 5 necessary. 6 Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998). 7 Should an agency determine that an EIS is unwarranted, it will 8 issue a 9 (“DN/FONSI”) that provides “a convincing statement of reasons” to 42 U.S.C. § 4332; 40 C.F.R. § 1508.11. An agency 40 C.F.R. § 1508.9; Blue Mountains Biodiversity Decision Notice and Finding of No Significant Impact 10 explain why the action will not have a significant effect on the 11 human environment. 12 714, 717 (9th Cir. 1988); 40 C.F.R. § 1508.13. 13 See Save the Yaak Comm. v. Block, 840 F.2d The Healthy Forest Restoration Act (“HFRA”), passed in 2003, 14 modifies an agency’s NEPA obligations for qualifying projects. 15 The purposes of the HFRA include, inter alia, reducing wildfire 16 risks, enhancing efforts to protect watersheds and address 17 threats to forest and rangeland health, and protecting, 18 restoring, and enhancing forest ecosystem components to promote 19 the recovery of threatened and endangered species. 20 § 6501. 21 implemented under the HFRA on federal land if the land contains 22 threatened or endangered species habitat where “natural fire 23 regimes on that land are identified as being important for, or 24 wildfire is identified as a threat to” a threatened species, the 25 project will provide enhanced protection from catastrophic 26 wildfire for the species or its habitat, and the project complies 27 with any applicable guidelines specified in any management or 28 recovery plan for the species. 16 U.S.C. An authorized hazardous fuel reduction project may be 16 U.S.C. § 6512(a). 10 Except as 1 provided in the HFRA, authorized projects must still comply with 2 NEPA. 3 project. 4 administrative review process and limits the range of project 5 alternatives that must be considered in detail. 6 §§ 6514(c), 6515; 36 C.F.R. §§ 218.1–218.16. 7 16 U.S.C. § 6514. An EA or EIS is required for every such 16 U.S.C. § 6514. The HFRA expedites the 16 U.S.C. The USFS considers the Project an HFRA authorized hazardous 8 fuels reduction project and Plaintiff does not challenge that 9 designation in this litigation. The USFS explained that the 10 Project qualifies under the HFRA because the Project is located 11 in a Late Successional Reserve (“LSR”) that provides habitat for 12 the NSO, includes portions of NSO critical habitat, and is 13 classified as Fire Regime Condition Class 3, which indicates 14 severe departure from historic conditions and significant chance 15 for the loss of species or habitats. 16 FS-23. Plaintiff argues that the USFS violated NEPA by: (1) failing 17 to prepare an EIS; (2) failing to adequately assess cumulative 18 impacts; (3) failing to evaluate alternatives; (4) failing to 19 take a hard look at the Project’s impacts; and (5) failing to 20 prepare a supplemental EA or EIS. 21 Summary Judgment (“P. MSJ”), ECF No. 103. 22 consider each of these claims in turn, noting that several of 23 Plaintiff’s arguments apply to more than one claim. 24 1. See Plaintiff’s Motion for The Court will Failure to Prepare an Environmental Impact Statement 25 26 “An EIS must be prepared if ‘substantial questions are 27 raised as to whether a project . . . may cause significant 28 degradation of some human environmental factor.’” 11 Blue Mountains 1 Biodiversity Project, 161 F.3d at 1212 (quoting Idaho Sporting 2 Cong. v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1996)). 3 may prevail on its claim that the USFS violated its statutory 4 duty by raising these questions and is not required to show that 5 the significant effects will in fact occur. 6 Biodiversity Project, 161 F.3d at 1212. 7 preparing an EIS by making conclusory assertions that an activity 8 will have only an insignificant impact on the environment.” 9 Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 864 10 Plaintiff Blue Mountains An agency “cannot avoid (9th Cir. 2004). 11 In order to determine whether an action “significantly” 12 affects the environment an agency must consider the context and 13 intensity of the project. 14 “that the significance of an action must be analyzed in several 15 contexts such as society as a whole, the affected region, the 16 affected interests, and the locality.” 17 Intensity “refers to the severity of impact” and requires the 18 responsible officials to consider ten separate factors in order 19 to evaluate an action’s intensity. 20 presence of even just “one of these factors may be sufficient to 21 require an EIS in appropriate circumstances.” 22 402 F.3d at 865 (citing Nat’l Parks & Conservation Ass’n v. 23 Babbitt, 241 F.3d 722, 731 (9th Cir. 2001) abrogated in part by 24 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). 25 40 C.F.R. § 1508.27. Context means 40 C.F.R. § 1508.27(a). 40 C.F.R. § 1058.27(b). The Ocean Advocates, The USFS published its EA and DN/FONSI at the end of August 26 2012. Plaintiff claims this decision was arbitrary and 27 capricious because the Project implicates six of the ten 28 /// 12 1 intensity factors. 1 2 a. 3 Thus, Plaintiff argues, an EIS was required. 2 Context The significance of a project “varies with the setting of 4 the proposed action.” 5 simply delimits the scope of the agency’s action, including the 6 interests affected.” 7 long-term effects are relevant.” 8 9 40 C.F.R. § 1508.27(a). Babbitt, 241 F.3d at 731. Thus, “[c]ontext “Both short- and 40 C.F.R. § 1508.27(a). The Smokey Project is located in the Mendocino National Forest in Northern California. FS-21. The vast majority (about 10 80%) of the Project will take place in the Buttermilk LSR, with 11 the remainder occurring in matrix lands (12%), riparian reserves, 12 and the Grindstone Inventoried Roadless area. 13 Portions of the Project will take place in the NSO’s designated 14 critical habitat as determined by the 2012 Critical Habitat Rule. 15 FS-4, 19101–2. FS-21–22. The region’s characteristics are discussed in 16 1 17 18 19 20 21 22 23 24 25 26 27 28 These six factors as discussed as follows in Part III.C.1.b–g are: 40 C.F.R. § 1508.27(b)(3) unique characteristics of the geographic area; (4) the degree to which the effects on the quality of the human environment are likely to be highly controversial; (5) the degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks; (7) whether the action is related to other actions with individually insignificant but cumulatively significant impacts; (9) the degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical; and (10) whether the action threatens a violation of Federal State, or local law or requirements imposed for the protection of the environment. 2 Plaintiff occasionally cites to findings in the 2014 BiOp. At the time the DN/FONSI issued, USFS only had the 2012 BiOp. The Court will only consider what was in front of the agency at the time of decision. See Conservation Cong. v. Heywood, No. 2:11cv-02250, 2015 WL 5255346, at 8 (E.D. Cal. Sep. 9, 2015) (“Review under the APA is to be based on the full administrative record that was before the agency at the time it made its decision.”) (citations and quotation marks omitted). 13 1 more detail below. 2 context grounds. 3 Plaintiff does not challenge the Project on See P. MSJ at 15. b. 4 5 6 Unique Characteristics of the Geographic Area Such as Proximity to Historic or Cultural Resources, Park Lands, Prime Farmlands, Wetlands, Wild and Scenic Rivers, or Ecologically Critical Areas The parties substantially agree that the Buttermilk LSR is a 7 unique and important region of the Mendocino National Forest, 8 especially with respect to late successional habitat dependent 9 species like the NSO. P. MSJ at 1; FS-42, 211, 5320, 5324. 10 consensus is not dispositive: “proximity of a project to a 11 sensitive area does not per se warrant an EIS.” 12 Wildlands Ctr. v. Grantham, 424 Fed. Appx. 635, 638 (9th Cir. 13 2011). 14 ‘significant effect’ on [the area].” 15 considers the region’s uniqueness in light of the remaining 16 This factors. 17 Klamath-Siskiyou Plaintiff must also “explain how the project would have a c. Id. The Court thus 18 The Degree to Which the Effects On the Quality of the Human Environment Are Likely to Be Highly Controversial 19 A project is “controversial” in “cases where a substantial 20 dispute exists as to the size, nature, or effect of the major 21 federal action rather than to the existence of opposition to a 22 use.” 23 F.2d 1172, 1182 (9th Cir. 1982). 24 sufficient controversy where an agency “received numerous 25 responses from conservationists, biologists, and other 26 knowledgeable individuals [–including two California State 27 Departments–] all highly critical of the EA and all disputing the 28 EA’s conclusion[.]” Found. for N. Am. Wild Sheep v. U.S. Dep’t of Agric., 681 Id. The Ninth Circuit has found In contrast, where a dispute is limited 14 1 to disagreement between qualified experts over what the data 2 reveals, the Circuit has deferred to the agency. 3 Action v. Franklin, 14 F.3d 1324, 1335 (9th Cir. 1992) (“If this 4 type of disagreement were all that was necessary to mandate an 5 EIS, the environmental assessment process would be 6 meaningless.”). 7 See Greenpeace Plaintiff contends that there is a substantial dispute as to 8 the effect of the project on the continued existence of the NSO 9 and as to the actual impacts of active management—to this degree— 10 in NSO habitat. 11 (“P. Rep.”), ECF No. 114, at 24–25. 12 scientific debate described in the 2011 RRP as evidence of the 13 “ongoing debate” over these issues. 14 P. MSJ at 23; Plaintiff’s Consolidated Reply Plaintiff cites the Id. The USFS addressed this controversy in the EA. FS-42–44. 15 The EA notes several papers that support Plaintiff’s position— 16 which Plaintiff raised in comments to the Project—and 17 acknowledges the disagreement in the scientific community. 18 43. 19 and observational data more specific to the relevant area in 20 developing the Project. 21 Project does not conflict with findings that burned forests may 22 benefit the species because the Project aims to manage stands to 23 reduce the risk of mortality rather than eliminate fire 24 occurrence entirely. FS- 25 The EA then explains that the USFS relied on publications Id. The EA also explains that the Id. As Plaintiff points out, the RRP also acknowledges the 26 disagreement in the scientific community on these issues. See FS- 27 4287. 28 raised in its comments to the Project. The RRP discusses publications similar to those Plaintiff 15 It addresses the issue as 1 follows: 2 This debate focuses on uncertainty and seems to be one of degree rather than fundamental difference in longterm conservation goals. We would like to build on areas of agreement for spotted owl recovery, but we recognize that many of these recommendations are controversial due to political and socio-economic reasons. However, given the need for action in the face of uncertainty, we continue to recommend that land managers implement a program of landscape-scale, science-based adaptive restoration treatments in disturbance-prone forests[.] 3 4 5 6 7 8 FS-4287. In another section, the RRP recognizes that its 9 recommendation to apply “active forest management” “may be 10 controversial” due, in part, to the different risks, benefits, 11 and predictability of treatment in different areas. 12 FS-4277. This evidence of some disagreement in the scientific 13 community does not make this particular Project “highly 14 controversial.” 15 from Plaintiff’s position and the cited publications. 16 explanation accords with the RRP’s observation that the benefit 17 of forest management will vary by forest area. 18 USFS considered opposing viewpoints and chose to rely on the 19 conclusions of its own experts; those conclusions are tailored to 20 this specific Project. 21 the “highly controversial” factor. 22 The USFS explained why its conclusions differ Its See FS-4277. The This cited disagreement does not trigger Plaintiff also argues that the disagreement between the USFS 23 and FWS employees over the MALAA determination, documented in 24 inter-agency and intra-agency emails, constitutes controversy. 25 The Court does not agree that this early disagreement mandates an 26 EIS. 27 and concerns a dispute as to whether a formal FWS consultation 28 was necessary. Plaintiff’s argument centers on emails from 2010 and 2011 See generally FWS-1–1161; P. MSJ at 23; P. Rep. 16 1 at 7–11. 2 formal consultation and later agreed that with the FWS’s 3 determination. 4 Court to any evidence in the decision documents that indicates 5 the agencies continued to feud over the Project’s impacts. 6 fact, the USFS addressed the initial disagreement in the EA: 7 The context of determining the threshold of ‘may affect, likely to adversely affect’ is an individual animal; the intensity threshold is very low, such that effects as minor as changes in foraging patterns and with probabilities as low as ‘not discountable’ receive a MALAA call. It is not highly controversial to differ on such fine points. 8 9 10 Despite that disagreement, the USFS moved forward with FWS-1111–14, 1285. Plaintiff does not point the In 11 FS-44. 12 defers to the FWS on the determination. 13 emails alone do not indicate that the Project in its final form 14 is “highly controversial.” 15 800 F.2d 822, 834 (9th Cir. 1986) (finding that early comments 16 indicating a contrary position did not render the final decision 17 arbitrary and capricious) (“Certainly, the Corps’ initial 18 comments were preliminary and subject to change as understanding 19 of permit issues expanded, the factual record developed, and the 20 mitigation plan created.”). 21 22 The agency also stated, several times, that it ultimately d. FS-44, FS-53. The early See Friends of the Earth v. Hintz, The Degree to Which the Possible Effects On the Human Environment Are Highly Uncertain or Involve Unique or Unknown Risks 23 “[T]he regulations do not anticipate the need for an EIS 24 anytime there is some uncertainty, but only if the effects of the 25 project are ‘highly’ uncertain.” 26 Forest Service, 451 F.3d 1005, 1011 (9th Cir. 2006) (“EPIC”). 27 The use of the word “highly” means that information merely 28 favorable to a plaintiff does not necessarily reach the 17 Envtl. Prot. Info. Ctr. v. U.S. 1 significance threshold. 2 Service, 428 F.3d 1233, 1240 (9th Cir. 2005). 3 EIS is mandated where uncertainty may be resolved by further 4 collection of data, or where the collection of such data may 5 prevent ‘speculation on potential . . . effects.’” 6 Babbitt, 241 F.3d at 731–32). 7 Native Ecosystems Council v. U.S. Forest “Preparation of an Id. (quoting Plaintiff directs the Court to FWS’s acknowledgment—in its 8 email communications and the 2011 RRP—“that there are significant 9 scientific uncertainties both as to the impacts of wildfire on 10 NSOs and as to the risks of forest treatments intended to reduce 11 wildfire risk.” 12 the previous section, the 2011 RRP acknowledges that the expert 13 disagreement regarding the impact of wildfire and active forest 14 management on NSOs centers on uncertainty. 15 focuses on uncertainty and seems to be one of degree rather than 16 fundamental difference in long-term conservation goals.”). 17 RRP also discusses the uncertainties associated with barred owls, 18 FS-4252, climate change, FS-4265, decision-making in light of 19 past management activities, Id., and the short- and long-term 20 effects of ecosystem restoration, FS-4280. 21 Plaintiff argues, the RRP emphasizes an “adaptive management” 22 approach to management decisions due to such uncertainties. 23 Rep. at 23 (citing FS-4237, 4260, 4261, 4306). P. MSJ at 23; P. Rep. at 22. As discussed in FS-4287 (“This debate The Additionally, P. 24 Although these documents do indicate uncertainty with 25 respect to NSO recovery efforts, Plaintiff does not tailor its 26 argument to the context of the Project at issue. 27 the Court may infer from these generalities that aspects of the 28 Project cross into uncertain territory. 18 To an extent, But the Court cannot 1 conclude, without more, the degree that this Project’s possible 2 effects on the human environment are highly uncertain. 3 has not argued that the Project’s forest management techniques 4 are new, unique to the region, or experimental such that the 5 results are unpredictable. 6 Mgmt., No. 6:14-cv-0110, 2015 WL 1190131 (D. Ore. Mar. 14, 2015) 7 (finding the effects of a pilot project to be “highly 8 uncertain”). 9 Plaintiff Cf. Ore. Wild v. Bureau of Land Plaintiff further points out that there is a self-inflicted 10 dearth of information with respect to the effects of projects 11 like this in the Mendocino National Forest. 12 Rep. at 4, n.1; see supra “Factual Background” (describing 13 “Monitoring Requirements”). 14 failed to satisfy its monitoring obligations for other projects 15 prior to its approval of this one. 16 failure to monitor its past projects in its initial comments: 17 “[W]e have significant objections to this type of vegetation 18 management in LSR when the Mendocino NF has violated its 19 monitoring reporting requirements to the FWS for NSO for the life 20 of the LRMP [(Land and Resource Management Plan)].” 21 USFS’s response, attached to the final EA in Appendix Z: “The 22 forest has not done the monitoring.” 23 concern during the Objection Period: 24 25 26 27 28 P. Rep. at 23–24; P. The record reveals that the USFS had Plaintiff raised the USFS’s Id. FS-174. The Plaintiff renewed its Through a FOIA request the Conservation Congress has documented that the NMF [sic] has never submitted a monitoring report to the USFWS that is required under Enforceable Terms and Conditions found in Biological Opinions. By not submitting these mandatory reports during the life of the LRMP, 15 years, the MNF has allowed the Environmental Baseline for the NSO to become invalid. The MNF has not documented the amount of owl habitat that has been removed, degraded, or 19 1 2 downgraded not [sic] has it kept up to date its incidental take database. The Forest has also failed to ever conduct any emergency consultations with the USFWS after wildfires affected CHU/LSR. 3 4 FS-1561. 5 acknowledges that the cited requirements have not been met, and 6 is in the process of compiling information to satisfy monitoring 7 requirements of past Biological Opinions for reporting to USDI- 8 FWS and NOAA Fisheries.” 9 September 15, 2010. 10 11 The Reviewing Official responded: “The [MNF] FS-1539. That response issued The EA does not address the lack of monitoring in its uncertainty analysis. Although the Court is concerned by these admissions, it 12 lacks the context it would need to evaluate the degree to which 13 the deficiency makes the Project’s impacts “highly uncertain.” 14 The Court cannot readily determine how this data would change the 15 analysis supporting the Project. 16 the BiOp contains over eighty pages of NSO related analysis, 17 including the Status of the NSO, Environmental Baseline, Effects 18 of the Proposed Action, Cumulative Effects, and Critical Habitat. 19 FS-18699–787. 20 distribution, and survey data. 21 Without more, the Court cannot find that the USFS’s conclusion on 22 this factor was arbitrary. 23 24 25 Despite the lack of monitoring, Both the BA and the BiOp reference NSO numbers, e. FS-214–215, 18730-33, 18741–42. Whether the Action is Related to Other Actions With Individually Insignificant But Cumulatively Significant Impacts “Significance exists if it is reasonable to anticipate a 26 cumulatively significant impact on the environment. 27 cannot be avoided by terming an action temporary or by breaking 28 it down into small component parts.” 20 Significance 40 C.F.R. § 1508.27(b)(9). 1 “The general rule under NEPA is that, in assessing cumulative 2 effects, the agency must give a sufficiently detailed catalogue 3 of past, present, and future projects, and provide adequate 4 analysis about how these projects, and the differences between 5 the projects, are thought to have impacted the environment.” 6 Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 7 1111 (9th Cir. 2015). 8 requires some quantified or detailed information that results in 9 a useful analysis, even when the agency is preparing an EA and “Consideration of cumulative impacts 10 not an EIS.” 11 Reclamation, 655 F.3d 1000, 1007 (9th Cir. 2011) (internal 12 quotation marks and citations omitted). 13 that the effects be presented in a particular form; an agency has 14 discretion in deciding how to organize and present information. 15 See Mont. Wilderness Ass’n v. Connell, 725 F.3d 988, 1002 (9th 16 Cir. 2013). 17 Ctr. for Envtl. Law & Policy v. U.S. Bureau of NEPA does not mandate Plaintiff first challenges the scope of the EA’s cumulative 18 impacts analysis, arguing that the USFS “irrationally limited 19 [the analysis to] the perimeter of the immediate project area and 20 fail[ed] to account for the impacts of the Project together with 21 other actions affecting the NSO in the critical Buttermilk LSR.” 22 P. MSJ at 21–22. 23 the critical importance of the Buttermilk LSR, it should have 24 analyzed the cumulative effects of the Project at that scale. 25 MSJ at 22. 26 It argues that because the USFS has recognized P. Courts generally “defer to an agency’s determination of the 27 scope of its cumulative effects review” and deference is 28 warranted in this case. See Neighbors of Cuddy Mountain v. 21 1 Alexander, 303 F.3d 1059, 1071 (9th Cir. 2002) (upholding Forest 2 Service’s cumulative effects analysis that only considered the 3 west side of the forest rather than the entire forest); see also 4 Kleppe v. Sierra Club, 427 U.S. 390 (1976) (“[D]etermination of 5 the extent and effect of [cumulative environmental impacts], and 6 particularly identification of the geographic area within which 7 they may occur, is a task assigned to the special competency of 8 the appropriate agencies.”). 9 for the NSO cumulative effects analysis—analyzes the The BA—the document cited in the EA 10 environmental baseline and cumulative effects at the scale of the 11 “Action Area.” 12 plus a 1.3 mile radius surrounding the unit boundaries.” 13 The BA explains that this acreage is used to account for those 14 species that are wide ranging, like the NSO. 15 Area encompasses 35,023 acres while the area of the proposed 16 treatment units amounts to 6,337. 17 appears to account for the location and movement patterns of the 18 NSOs, thus warranting the Court’s deference on this issue. 19 This area includes “the proposed treatment units Id. Id. FS-188. The Action This delimited area Plaintiff further argues that the NSO analysis is inadequate 20 because “private actions are nowhere considered in the EA or any 21 other environmental documentation for the project.” 22 22. 23 “Summary of Cumulative Effects” section of the BA, which the EA 24 references. 25 Forest Service are accounted for in this analysis.”). 26 identifies overlapping parcels of private land and states their 27 apparent use, including some “light to moderate selective 28 harvesting.” P. MSJ at Actually, private actions are briefly discussed in the FS-267; see also FS-45) (“Both private land and Id. The BA As for smaller personal inholdings, it states 22 1 that future management is unknown though “it can be predicted 2 that some may be harvested, used for recreation, developed, or 3 burned through prescribed fire.” 4 concludes: “Considering potential Federal and other management 5 activities, the home ranges would continue to provide adequate 6 habitat for reproducing pairs. 7 was not considered as part of this analysis. 8 private land would not affect the suitability of these home 9 ranges.” Id. Id. A few lines down the BA Suitable habitat on private land Loss of habitat on This final sentence indicates that even if private 10 landholders harvested their land, the NSO home ranges would 11 remain intact. 12 private projects that the USFS should have accounted for and the 13 Court cannot speculate that any such “reasonably foreseeable” 14 actions were omitted. 15 Plaintiff does not identify any particular Lastly, Plaintiff contends that the cumulative effects 16 analysis is inadequate with respect to past projects. P. MSJ at 17 22; P. Rep. at 22 (conceding that the USFS did provide a more 18 nuanced discussion of concurrent and future projects). The Court 19 finds that the USFS adequately addressed past actions. Under 20 Ninth Circuit precedent, an agency “may satisfy NEPA by 21 aggregating the cumulative effects of past projects into an 22 environmental baseline, against which the incremental impact of a 23 proposed project is measured.” 24 1111. 25 “Baseline Information.” 26 management, the BA provides a table of past timber sales with the 27 year and the number of acres sold. FS-205. 28 footprint of what was harvested (4,468, 13% of the Action Area) Cascadia Wildlands, 801 F.3d at The BA first addresses past actions in the subsection on See FS-204–228. 23 With respect to forest It then measures the 1 and identifies the subset of that footprint that remains in a 2 plantation type condition (1,500 acres, 4% of the Action Area). 3 Id. 4 currently provide foraging quality habitat. 5 later, the BA turns to the NSO and discusses its present status 6 and environmental baseline. 7 multiple reports cited in the EA, each of which assess the 8 cumulative effects of the project with respect to particular 9 resources. It concludes that about half of those remaining acres FS-214–15. Id. Several pages The BA is only one of See, e.g., Fuels Report, FS-539–56 (discussing 10 “Existing Conditions” and “Actions (past, present, future) 11 significant to cumulative effects”). 12 identified any past projects or events that USFS failed to 13 account for; thus, the Court has no reason not to defer to the 14 agency on this issue as well. 15 f. 16 17 18 Plaintiff has not The 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 “NEPA regulations direct the agency to consider the degree 19 of adverse effect on a species [or critical habitat], not the 20 impact on individuals of that species.” 21 It is therefore not the case that any impact to a listed species 22 requires an EIS. 23 significance factor based on “the capability of the affected area 24 to support overall viability of affected endangered or threatened 25 species.” 26 2010, and Methodology for MIS Analysis, 2009). 27 /// 28 /// See id. at 1012. EPIC, 451 F.3d at 1010. The USFS evaluates this FS-50 (citing Wildlife Specialist Report, July 16, 24 1 As described in the “Factual Background,” above, the EA 2 concludes that the Project’s impacts to the NSO are not 3 significant. 4 although there is potential for harm to individual NSOs, that 5 potential is short term. 6 that the Project will not jeopardize the continued existence of 7 the species at either the range-wide or the recovery unit scale, 8 as well as the favorable conclusions in the BA and Wildlife 9 Specialist Report. FS-53. The EA cites each agency’s conclusion that Id. Id. It cites the BiOp’s conclusion The USFS determined: “Based on the small 10 number of owls impacted, the short-term nature of the impacts, 11 the undiminished functionality of all affected suitable habitat, 12 and the continued ability of the area to support viability, the 13 impacts to NSO are not significant.” 14 Id. Plaintiff argues that the USFS’s conclusion is untenable 15 given the MALAA determination and FWS’s findings throughout the 16 record that the project would significantly impact NSOs. 17 at 16–17. 18 “significant” in multiple places. 19 (“Commercial thinning, fuels treatments, and habitat enhancement 20 treatments are expected to result in significant effects to [NSO] 21 breeding, feeding, and/or sheltering . . .), 18766 (“Smoke 22 disturbance and habitat manipulation are expected to cause 23 significant impairment of breeding, feeding, and sheltering of 24 [NSOs] at this activity center during years 3, 4, and 5”). 25 Defendants argue that significance is a term of art in the NEPA 26 context and it is the USFS’s determination, not the FWS’s use of 27 the term, that dictates whether an EIS is required. 28 Defendants Cross-Motion for Summary Judgment (“D. Cr. Mot.”) at P. MSJ Plaintiff points out that the BiOp uses the term 25 See, e.g., FS-18757 Federal 1 2 17. Although the Project will have some impact on the NSOs in 3 the Project area, the Court defers to the USFS’s finding that the 4 impact is not significant. 5 analysis in EPIC instructive. 6 that an EIS should have been prepared because the project at 7 issue was “likely to affect the NSO and its critical habitat 8 significantly.” 9 that “‘three nest sites could be destroyed’ and that the logging The Court finds the Ninth Circuit’s In that case, the plaintiff argued EPIC, 451 F.3d at 1010. The FWS’s BiOp reported 10 [would] remove ‘most, if not all, of the small amount of existing 11 nesting habitat’ within the critical habitat units.” 12 578 acres to be logged in the Klamath National Forest, 125 acres 13 had been designated critical habitat. 14 nesting habitat was set to be removed, fifty-one acres of high 15 quality nesting habitat would be degraded to moderate quality, 16 and the remaining sixty acres—only suitable for dispersal—would 17 maintain its dispersal function post- harvest. 18 these certain and potential losses, the EPIC court deferred to 19 the agency. 20 21 22 23 24 25 Id. Id. Of the Fourteen acres of Id. Despite It reasoned as follows: These statements, however, must be read in context. For example, although the logging will remove existing nesting habitat from two critical habitat units, this amounts to a total of only fourteen acres. Similarly, the Project does not authorize the destruction of any existing nest sites, and surveys and seasonal restrictions operate to protect potentially occupied nest sites. The projected take of three nests or pairs of owls is based on extrapolations from nesting data, and FWS determined that this level of anticipated take was permissible under the ESA. 26 EPIC, 451 F.3d at 1010. In conclusion, the Ninth Circuit held 27 “[i]t was not arbitrary and capricious for USFS to determine that 28 although there will be some effect on individual pairs, this will 26 1 not cause a significant adverse effect on the species and require 2 an EIS.” 3 Id. at 1011. Although the project in EPIC was much smaller than the 4 Project in this case, the proposals have similar projected 5 impacts. 6 activity centers, resulting in significant effects for the owls 7 in those centers; “take in the form of harm of juvenile [NSOs] 8 and harassment of adult [NSOs]” is expected. 9 Implementation of the LOP is expected to decrease the risk of This Project is expected to degrade habitat in two FS-18789–90. 10 harm to young in one of those centers. 11 habitat is expected and habitat function of the treated areas 12 will be maintained (minus one linear unit for a temporary road). 13 FS-18788. 14 returning to normal after two to three years. 15 Unlike the EPIC project, no NSO habitat will be removed and no 16 destruction of nest sites is anticipated. 17 EPIC court’s directive that significant effects to individual 18 owls does not necessarily imply significant effects to the 19 species, this Court finds that the USFS’s “effects” conclusion 20 was not arbitrary and capricious. 21 FS-18792. No loss of NSO Habitat degradation is expected to be short-term, FS-52, 18788. Thus, following the Plaintiff’s additional arguments on this question are 22 unavailing. Plaintiff argues that the USFS improperly relied on 23 the FWS’s “no jeopardy” determination in order to justify its 24 conclusion regarding significance. 25 characterization of the agency’s determination is inaccurate; the 26 USFS refers to the Biological Assessment, Biological Opinion, and 27 Wildlife Specialist Report Plaintiff in support of its 28 determination. FS-53. P. MSJ at 19. This It is entirely proper for the USFS to 27 1 consider the FWS’s findings, along with the findings in these 2 other documents, in reaching its conclusion. 3 at 1012 (“Clearly, NEPA and the ESA involve different standards, 4 but this does not require the USFS to disregard the findings made 5 by FWS in connection with formal consultation mandated by the 6 ESA.”). 7 not inform the USFS’s conclusion because those findings relate to 8 the range-wide and recovery unit scale impacts, rather than the 9 Buttermilk LSR. See EPIC, 451 F.3d Finally, Plaintiff argues that the FWS’s findings should P. MSJ at 19. As already discussed, NEPA 10 requires the USFS to consider the degree of adverse effect on a 11 species, not individuals. 12 fails to explain how a range-wide or recovery unit-scale analysis 13 would impede the USFS in fulfilling its obligation. 14 g. EPIC, 451 F.3d at 1010. Plaintiff 15 Whether the Action Threatens a Violation of Federal, State, or Local Law or Requirements Imposed For the Protection of the Environment 16 Plaintiff claims that because the Project violates the NFMA, 17 the USFS is required to prepare an EIS. Plaintiff argues that 18 the DN/FONSI’s claim that the project is consistent with the 19 Mendocino National Forest Land and Resource Management Plan 20 (“LRMP” or “Forest Plan”) is contrary to FWS’s express finding 21 that the Project is inconsistent with portions of Recovery Action 22 10 of the RRP. 23 fully address Plaintiff’s claims with respect to the National 24 Forest Management Act and 2011 Revised Recovery Plan in Part 25 III.E, below. 26 violate the NFMA. 27 /// 28 /// P. MSJ at 20 (citing FS-18983). The Court will The Court concludes that the Project does not 28 1 2 h. Conclusion None of the issues Plaintiff raises—either separately or 3 taken together—mandates preparation of an EIS. 4 for the Defendants on this claim. 5 6 2. The Court finds Failure to Analyze Cumulative Impacts Plaintiff asserts the failure to evaluate cumulative impacts 7 of the proposed action as a separate NEPA cause of action. 8 Compl. at 26. 9 respect to cumulative effects are contained under the cumulative In its briefs, Plaintiff’s only arguments with 10 effects intensity factor, addressed at Part III.C.1.e, supra. 11 See P. MSJ at 20. 12 addressed the cumulative effects in the EA and the underlying 13 reports. 14 claim. 15 16 As the Court concluded above, the USFS The Court rules in favor of the Defendants on this 3. Failure to Develop Alternatives Plaintiff argues that the USFS’s alternatives analysis was 17 inadequate because the Project’s stated purpose is arbitrary and 18 because the USFS failed to consider a proposed, reasonable 19 alternative. 20 inadequate. 21 22 The Court agrees that the alternatives analysis is a. Purpose and Need of the Project The purpose and need of a project defines the scope of the 23 alternatives analysis and an agency need only evaluate 24 alternatives that are reasonably related to the project’s 25 purposes. 26 Biodiversity Project v. U.S. Forest Service, 689 F.3d 1060, 1069 27 (9th Cir. 2012). 28 to define the purpose and need of a project.” League of Wilderness Defenders-Blue Mountains Courts afford agencies “considerable discretion 29 Id. (citations and 1 quotation marks omitted). 2 project necessarily dictates the range of reasonable alternatives 3 [,] [] an agency cannot define its objectives in unreasonably 4 narrow terms.” 5 Transp., 123 F.3d 1142, 1155 (9th Cir. 1997). 6 7 However, because “the stated goal of a City of Carmel-By-The-Sea v. U.S. Dep’t of The Project’s purpose and need, as articulated in the EA, is the following: 8 The purpose of [the Project] is primarily to contribute to achieving wildlife habitat, fire management and secondarily to timber production goals established by the MHF Forest Plan. There is also a need to comply with applicable management direction of the Forest Plan, Forest Service Policy regulations and laws. Thus the proposal includes design features and requirements to ensure environmental compliance in addition to the activities that would achieve the Forest Plan goals. 9 10 11 12 13 FS-23. 14 it conflicts with the 2011 RRP. 15 that this purpose “ineluctably led the USFS to consider only a 16 single irrational action alternative for the Project.” 17 Plaintiff contends that this purpose is arbitrary because P. MSJ at 12. Plaintiff argues Id. The Project’s purpose does not conflict with the RRP as 18 Plaintiff claims. The RRP repeatedly states that it support 19 forest management practices that aim to restore more natural 20 vegetation patterns and fire regimes, including management in 21 certain areas to reduce fire severity. 22 The above quoted purpose does not contradict this advice. 23 term “fire management” is broad and may be understood to 24 encompass the type of management the RRP favors. 25 Plaintiff’s own proposed alternatives, described below, belie the 26 fact that the Project’s purpose was not so narrowly drawn as to 27 preclude consideration of other alternatives. 28 /// 30 See, e.g., FS-4298–99. The Furthermore, 1 2 b. Alternatives Analysis Alternatives analysis is the heart of the environmental 3 impact statement. 4 present the environmental impacts of the proposal and the 5 alternatives in comparative form, thus sharply defining the 6 issues and providing a clear basis for choice among options by 7 the decisionmaker and the public.” 8 9 40 C.F.R. § 1502.14. The analysis “should Id. Under NEPA, “[a]gencies are required to consider alternatives in both EISs and EAs and must give full and 10 meaningful consideration to all reasonable alternatives.” 11 Moak Tribe of West. Shoshone of Nev. v. U.S. Dep’t of Interior, 12 608 F.3d 592, 601–02 (9th Cir. 2010). 13 but unexamined alternative renders an environmental impact 14 statement inadequate.” 15 F.A.A., 161 F.3d 569, 575 (9th Cir. 1998) (internal quotation 16 marks and citation omitted) (applying this rule in the EA 17 context). 18 only consider three alternatives: the proposed agency action; the 19 alternative of no action; and an additional action alternative, 20 if the additional alternative—(i) is proposed during scoping or 21 the collaborative process under subsection (f); and (ii) meets 22 the purpose and need of the project, in accordance with 23 regulations promulgated by the Council on Environmental Quality. 24 16 U.S.C. § 6514(c). 25 Te- “The existence of a viable Morongo Band of Mission Indians v. Projects authorized under the HFRA—like this one—need The parties agree that under the HFRA, the USFS is required 26 to consider one additional action alternative provided that the 27 above conditions are met. 28 conditions were met in this instance. The parties dispute whether those 31 Plaintiff argues that it 1 proposed a viable action alternative that the USFS failed to 2 consider. 3 contends that the following sentence, from its First Objection, 4 raised an alternative that should have been considered: “To meet 5 the intent of the LRMP, prescriptions should be designed to only 6 maximize volume over other resources in the suitable timber base, 7 not LSR. 8 from below prescriptions with quantitative diameter limits (e.g. 9 no big trees over 18” DBH will be cut in LSR) were a viable P. MSJ at 13; P. Rep. at 16. Specifically, Plaintiff This is despite the reality that more limited thinning 10 option that would meet all HFRA objectives, while also being 11 consistent with LSR duties.” 12 an 18” DBH diameter cap. 13 FS-1580. The USFS did not consider Intervenor asserts that the USFS did not need to consider 14 Plaintiff’s diameter cap recommendation because the alternative 15 was not raised during the first scoping period. 16 Intervenor’s Cross-Motion for Summary Judgment (“I. Cr. Mot.”), 17 ECF No. 109, at 9–10; Defendant-Intervenor’s Reply (“I. Rep.”), 18 ECF No. 115, at 7. 19 requires an agency to consider an action alternative raised 20 during scoping or the collaborative process under subsection (f). 21 16 U.S.C. § 6514(c)(1)(C)(i). 22 Collaboration” consistent with the “Implementation Plan,” that 23 encourages meaningful public participation during preparation of 24 authorized hazardous fuel reduction projects. 25 § 6514(f). 26 clear; it does not appear that another court has had an 27 opportunity to delimit the phrase. 28 principles of statutory interpretation, the Court may infer that Defendant- This argument is not persuasive. The HFRA Subsection (f) prescribes “Public 16 U.S.C. What constitutes the “collaborative process” is not 32 However, under basic 1 the “collaborative process” means something beyond “scoping” or 2 the addition would be superfluous. 3 U.S. 19, 31 (2001) (“It is a cardinal principle of statutory 4 construction that a statute ought, upon the whole, to be 5 construed that, if it can be prevented, no clause, sentence, or 6 word shall be superfluous, void, or insignificant.”). 7 the Plaintiff’s active participation throughout the iterations of 8 the Project—as described in the “Factual Background”—the Court 9 concludes that Plaintiff’s suggestions were made during the 10 11 See TRW Inc. v. Andrews, 534 Based on collaborative process. Defendants focus their argument on Plaintiff’s form rather 12 than timing. 13 DBH cap “outright” but merely did so “in passing” such that it 14 failed to actually suggest an alternative that the USFS was 15 required to consider. 16 Reply (“D. Rep.”), ECF No. 117, at 4. 17 They argue that Plaintiff did not suggest an 18” D. Cr. Mot. at 15–16; Federal Defendant’s This argument is also unpersuasive. The USFS nominally 18 considered a diameter cap alternative in the EA. 19 “Alternatives not Considered in Detail,” the USFS lists “Using a 20 diameter limit, removing no trees over 10” DBH” as an 21 “alternative [] suggested by comments received during both 22 scoping comment periods.” 23 cap would not meet the purpose and need of the project. 24 Plaintiff calls this “10” diameter cap” a “strawman alternative.” 25 P. MSJ at 13. 26 EA to the comments and objections in the Administrative Record, 27 the Court agrees. 28 Summary and Issue Identification), Supplemental Appendix Z FS–36–37. Under It then states that this Id. After comparing the “Alternatives Analysis” in the This Court’s review of Appendix Z (Scoping 33 1 (Smokey EA Supplement, Scoping Summary and Issue Identification), 2 and the scoping documents included in the Administrative Record 3 (FS-3240–3691) does not turn up any comments specifically 4 suggesting a 10” diameter cap. 3 5 comments and objections suggesting a diameter cap for large trees 6 and/or expressing concern over the cutting of larger trees. 7 e.g.: • 8 9 In contrast, there were multiple See, FS-3629 (“The HFRA also has very strong direction regarding the maintenance of old growth and ‘Large’ 10 diameter trees.” – Conservation Congress (“CC”), 1st 11 Scoping); • 12 FS-3629 (“There is not information regarding size 13 classes or age class for either management area [(LSR 14 or Matrix)] and this information needs to be 15 disclosed.” – CC, 1st Scoping); • 16 FS-3636 (“These concerns would be greatly reduced if 17 you would adopt a maximum DBH size such as 24” for the 18 trees that can be cut, especially in the LSR.” – 19 California Wilderness Center, 1st Scoping); • 20 FWS-61 (“Also is there a radius around the hardwoods 21 that would be followed? 22 larger trees (24”+ dbh)?” – FWS, 1st Scoping); • 23 Would it include removal of FWS-1162 (“There may be areas where 20-24” trees could 24 be harvested without adverse effects, but those would 25 be on a site specific basis depending on stand 26 27 28 3 At the hearing, Defense counsel raised the possibility that this suggestion was made at a meeting between Conservation Congress and USFS representatives, but conceded that it was not documented in the record. 34 1 characteristics.” – FWS, Rationale for [MALAA] 2 Determination); 4 • 3 FS-1568 (“The HFRA was passed with significant duties 4 to not cut larger diameter, big, or old growth trees 5 whenever feasible. Meeting that duty was feasible in 6 the Smokey Project area. However the Smokey proposed 7 action was designed to include logging various big, 8 large diameter, and old growth trees and forests in a 9 manner that violates the new legislative standard.” – 10 CC, 1st Objection); • 11 FS-1569 (“The removal of large diameter trees is not 12 necessary in order to attain the objectives of this 13 HFRA project. 14 trees has been expressed continually from multiple 15 organizations and local residents throughout the past 16 nearly two years of meetings and comments.” – CC, 1st 17 Objection); • 18 Furthermore, the controversy over large FS-1580 (“To meet the intent of the LRMP, prescriptions 19 should be designed to only maximize volume over other 20 resources in the suitable timber base, not LSR. 21 is despite the reality that more limited thinning from 22 below prescriptions with quantitative diameter limits 23 (e.g. no big trees over 18” DBH will be cut in LSR) 24 were a viable option that would meet all HFRA 25 objectives, while also being consistent with LSR This 26 27 28 4 The Court agrees with Defendants that the FWS did not propose a 20” diameter cap as Plaintiff suggests. The quoted statement does, however, add weight to Plaintiff’s point more generally. 35 1 2 duties.” – CC, 1st Objection); • FS-3546 (“Yet a secondary purpose of the project is to 3 achieve timber production goals established in the 4 Forest Plan. It’s clear the secondary purpose is 5 actually the first, since almost 18% of the timber cut 6 will be 24” DBH or greater.” – CC, 2nd Scoping); 7 • FS-3547 (“The Supplemental BA information included a 8 Cruise Data Sheet documenting the DBH of trees to be 9 cut. According to this chart, 36.2% of the trees 10 logged in Smokey will be 20” DBH or GREATER – up to 43” 11 DBH. 12 logged for any reason[.]” – CC, 2nd Scoping); 13 • These trees in critical habitat should not be FS-3547 (“We also note from out FOIA responsive records 14 that the FWS requested diameter limits repeatedly for 15 this project yet their requests were also ignored by 16 the NMF . . . . [In phone calls, the DOI/FWS has] 17 stated that trees over 24” DBH should not be logged in 18 owl critical habitat. . . . The FS has never 19 articulated a rationale for not providing diameter 20 limits for timber projects in owl habitat despite 21 repeated requests to do so. 22 it is proposing to log large diameter trees that should 23 not be logged.” – CC, 2nd Scoping); 24 • We surmise it is because FS-3547 (“The NWFP, the Recovery Plan, and numerous 25 scientific papers all use diameter limits regarding 26 tree retention in owl habitat. 27 steadfastly refuses to adopt diameter limits makes all 28 projects in owl habitat suspect.” – CC, 2nd Scoping); 36 The fact the Mendocino 1 • FS-3552 (“The Forest states that ‘tree diameters in 2 Smokey would be much larger, averaging 22” dbh and 3 higher.’ 4 diameter could be if it implemented a restriction on 5 the size of trees being cut (i.e. no trees harvested 6 over 24” dbh).” – CC, 2nd Scoping); 7 • However, it fails to mention what the average FS-3553 (“The removal of small dimeter trees would 8 improve the foraging habitat for Northern spotted owls. 9 However, this project also proposed to remove large 10 diameter trees. . . . [R]emoving the forest (or 11 critical habitat components – large trees) is not 12 compatible with the stated purpose of this project.” – 13 CC, 2nd Scoping). 14 The record is full of suggestions and concerns regarding 15 diameter caps (18”, 20”, and 24”) and retention of larger trees, 16 and Defendants fail to explain why none of these triggered the 17 HFRA requirement to prepare a single additional alternative. 18 Although Plaintiff did not explicitly frame its suggestion as a 19 “proposed alternative,” the sampling of comments above show that 20 Plaintiff did more than just mention a diameter cap “in passing.” 21 As Defendants note, “[p]ersons challenging an agency’s compliance 22 with NEPA must structure their participation so that it alerts 23 the agency to the parties’ position and contentions.” 24 4–5 (quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764 25 (2004)). 26 that the USFS’s decision not to consider, or even acknowledge, an 27 alternative with a larger diameter cap was arbitrary and 28 capricious. D. Rep. at Plaintiff—and others—did so here and the Court finds 37 1 4. Failure To Take a “Hard Look” At Project’s Impacts 2 3 Plaintiff argues that even if the Project does not require 4 an EIS, the USFS still failed to take a hard look at the impacts 5 of the Project in violation of NEPA. 6 Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002). 7 question, the Court primarily looks to the USFS’s analysis in the 8 EA, the underlying reports referenced therein, and the 9 Supplemental Information Report, keeping in mind NEPA’s twin aims See Neighbors of Cuddy On this 10 of fostering better decision making and informing public 11 participation for actions that affect the environment. 12 Natural Res. Council Action v. U.S. Forest Service, 293 F. Supp. 13 2d 1200, 1204 (D. Ore. 2003). 14 See Ore. An EA is a “concise public document” that briefly provides 15 sufficient evidence and analysis for determining whether to 16 prepare an EIS; it aids an agency’s compliance with NEPA when no 17 EIS is necessary and facilitates EIS preparation when one is 18 necessary. 19 discussions of the need for the proposal, of alternatives as 20 required by [NEPA], of the environmental impacts of the proposed 21 action and alternatives, and a listing of agencies and persons 22 consulted.” 23 “that the agency, in reaching its decision, will have available, 24 and will carefully consider detailed information concerning 25 significant environmental impacts; it also guarantees that the 26 relevant information will be made available to the larger 27 audience that may also play a role in both the decisionmaking 28 process and the implementation of that decision.” 40 C.F.R. § 1508.9(a). 40 C.F.R. § 1508.9(b). 38 It must include “brief NEPA’s requirements ensure Ore. Natural 1 Res. Council Action, 293 F. Supp. 2d at 1204–05 (citations and 2 quotation marks omitted). 3 reviewing the adequacy of the agency’s analysis, while keeping in 4 mind that it is not the Court’s role to order the agency to 5 explain every possible scientific uncertainty. 6 Council v. McNair, 537 F.3d 981, 986 (9th Cir. 2008). 7 The Court is thus charged with See The Lands As previously explained, the USFS’s failure to consider or 8 address the alternatives raised during public collaboration 9 renders the EA inadequate. This deficiency is one indication 10 that the agency failed to take a hard look at the Project’s 11 impacts. 12 support such a finding. 13 Plaintiff raises several other concerns that further The Limited Operating Period is stated inconsistently 14 throughout the record, making it difficult for Plaintiff, the 15 Court, the public, and perhaps even the agency to know exactly 16 how the LOP operates. 17 incorporates the LOP required by the 2012 BiOp’s ITS, but 18 Appendix A of the EA states the LOP in different terms. 19 FS-18792 (“Implement a limited operating period . . . in the 20 units containing suitable nesting/roosting or foraging habitat. 21 . . . If current protocol-level survey information is not 22 current/available, a limited operating period [will be 23 implemented within] . . . any unsurveyed nesting/roosting 24 habitat.” – 2012 BiOp) with FS-77 (“A limited operating period 25 (LOP) for northern spotted owls would be applied to all units 26 from February 1 to September 15 unless current protocol-level 27 surveys indicate that they are unnecessary.” – EA, Appendix A). 28 The LOP again changes in the Supplemental BiOps (2014 and 2015), The DN/FONSI states that the Project 39 Compare 1 though the USFS states it will adhere to the LOP as written in 2 the 2012 ITS. 3 letter listing the units where an LOP from February 1st to 4 September 15th would apply, an LOP from February 1st to July 10th 5 would apply, and where no LOP would apply in the event that no 6 protocol surveys are not conducted in a given year. 7 1. 8 of the EA. 9 consistent with the LOP as written in the 2012 BiOp’s ITS, but 10 that explanation is not readily discernable from the EA or the 11 accompanying documents. 12 explanation at the hearing relied on data from several different 13 sources; a clear and consolidated explanation is found nowhere in 14 the record or documents made available to the public. 15 confusion makes it difficult to discern the Project’s impacts in 16 the circumstance that current protocol level surveys are 17 unavailable. 18 role in the decision-making process or project implementation, 19 running counter to one of NEPA’s principal aims. In April of last year, the USFS sent Trinity a ECF No. 86- This advice conflicts with the LOP as written in Appendix A Intervenor offers an explanation of how the list is See I. Cr. Mot. at 19. Even counsel’s The It also makes it difficult for the public to play a 20 As noted previously, this Court is concerned by the fact 21 that the USFS has admittedly failed to do the monitoring required 22 for other projects. 23 this deficiency mandates preparation of an EIS, the fact that the 24 agency fails to address this issue in its decision documents 25 raises suspicion. 26 the EA, the agency merely admits that monitoring has not occurred 27 and offers no explanation of why, no description of how the issue 28 will be ameliorated, and no rationale for why this deficiency Although the Court declines to find that While the concern is noted in Appendix Z of 40 1 does not render the Project’s impacts “uncertain.” 2 appear the agency took a hard look at this question. 3 It does not Plaintiff raises a number of other issues with the EA, most 4 of which lack merit because the concerns are addressed in the 5 Appendices and cited underlying reports. 6 Court agrees that the EA contains varying statistics regarding 7 the number of acres to be treated; while a thorough read of the 8 decision documents clarifies these differences, the EA’s lack of 9 precision does make the document confusing. Of those concerns, the Although this issue 10 would not likely, by itself, warrant a finding against the USFS, 11 the agency would be wise to be more careful in its revision. 12 Given the failure to address reasonable alternatives, the 13 inconsistent LOPs, and the failure to address past monitoring 14 practices, the Court finds that the USFS did not conform to NEPA 15 and take the requisite hard look at the Project. 16 5. 17 Failure to Prepare a Supplemental EA or EIS Although Supplemental Information Reports are not mentioned 18 in NEPA or its regulations, courts recognize a “limited role” for 19 them in environmental evaluation procedures. 20 Congress Inc. v. Alexander, 222 F.3d 562, 566 (9th Cir. 2000). 21 Courts have upheld their use in an agency’s determination of 22 whether new information or changed circumstances require the 23 preparation of a supplemental EA or EIS. 24 environmental impacts resulting from the design change are 25 significant or uncertain, as compared with the original design’s 26 impacts, a supplemental EA is required.” 27 /// 28 /// 41 Id. Id. Idaho Sporting “If the 1 Plaintiff primarily argues that the SIR is arbitrary and 2 capricious because it fails to address the USFS’s “design change” 3 in the LOP. 4 2016 letter from the USFS to Trinity. 5 25; ECF No. 86-1. 6 this letter was not before it. 7 LOP determinations and the 2016 letter are confusing. 8 concern is best addressed in the “hard look” analysis, above. P. MSJ at 24. The argument is based on the April 1, P. MSJ at 24; P. Rep. at The agency prepared the SIR in 2015 and thus The Court acknowledges that the This 9 Plaintiff also argues that the USFS “piggybacks” on the 10 FWS’s no-jeopardy conclusion in the 2014 BiOp and thus failed to 11 take a “hard look” at the impacts of the change in the NSO’s 12 critical habitat designation. 13 case. 14 and in addition the 2014 Supplemental BA. 15 lengthy analysis in both documents in support of its conclusion 16 that “[t]he Smokey Project will have long term beneficial effects 17 on [NSO] habitat and any adverse impacts to designated critical 18 habitat would be minor and temporary.” 19 not claim the Supplemental BA was inadequate. 20 out that the USFS did not mention the declining NSO population in 21 the SIR, but Plaintiff does not explain how this renders the 22 determination inadequate. P. MSJ at 24. This is not the The SIR relies on the BiOp in part, but does so broadly The SIR cites to the FS-3–5. Plaintiff does Plaintiff points 23 In sum, the Court finds that the USFS’s decision not to 24 prepare a Supplemental EA or EIS was not arbitrary and capricious 25 and finds for Defendants on this claim. 26 D. 27 The ESA requires any federal agency seeking to implement a 28 ESA Claims project that could adversely affect the habitat of an endangered 42 1 or threatened species to go through a formal consultation process 2 with the FWS. 3 v. U.S. Fish & Wildlife Service, 378 F.3d 1059, 1063 (9th Cir. 4 2004). 5 “biological assessment for the purpose of identifying any 6 endangered species or threatened species which is likely to be 7 affected” by the agency’s proposed action. 8 Prior to and during the consultation process, the federal agency 9 and the FWS must use the “best scientific and commercial data 16 U.S.C. § 1536(a)(2); Gifford Pinchot Task Force Before the consultation begins, the agency must submit a 16 U.S.C. § 1536(c). 10 available.” 11 consultation process, the FWS must issue a Biological Opinion 12 (“BiOp”). 13 statement setting forth the Secretary’s opinion, and a summary of 14 the information on which the opinion is based, detailing how the 15 agency action affects the species or its critical habitat.” 16 If the FWS believes that the project will jeopardize a listed 17 species or adversely modify the species’ habitat, “the Secretary 18 shall suggest those reasonable and prudent alternatives which he 19 believes would not violate subsection (a)(2) and can be taken by 20 the Federal agency or applicant in implementing the agency 21 action.” 22 agency action and is subject to judicial review. 23 Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 925 (9th 24 Cir. 2007). 25 16 U.S.C. § 1536(a)-(c). 16 U.S.C. § 1536(b)(3)(A). Id. At the end of the formal A BiOp is a “written Id. The biological opinion is considered a final Nat’l Wildlife The ESA also prohibits any federal agency from “taking” a 26 listed species. 16 U.S.C. § 1538(a)(1). 27 harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 28 collect, or to attempt to engage in any such conduct.” 43 To “take” means to 16 U.S.C. 1 § 1532 (19). 2 an endangered or threatened species incidental to the agency 3 action, the action may still go forward if the FWS approves of it 4 through an Incidental Take Statement (“ITS”). 16 U.S.C. § 1536 5 (b)(4); Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 6 273 F.3d 1229, 1239 (9th Cir. 2001). 7 impact of the incidental take on the species, the measures 8 necessary or appropriate to minimize impact, and the terms and 9 conditions that must be complied with by the applicant agency to If the federal action will result in the taking of The ITS specifies the 10 implement those measures. 11 it intends to take or does not comply with the ITS, the agency 12 must reinitiate consultation with FWS. 13 1. Id. If an agency modifies the action 50 C.F.R. § 402.16. Arbitrary and Capricious Supplemental Biological Opinion 14 15 The jeopardy and adverse modification determinations are 16 made pursuant to governing regulations. 17 continued existence of’ means to engage in an action that 18 reasonably would be expected, directly or indirectly, to reduce 19 appreciably the likelihood of both the survival and recovery of a 20 listed species in the wild by reducing the reproduction, numbers, 21 or distribution of that species.” 22 “Destruction or adverse modification means a direct or indirect 23 alteration that appreciably diminishes the value of critical 24 habitat for the conservation of a listed species.” 25 Ninth Circuit has held that the reviewing agency must consider 26 both recovery and survival impacts in these determinations. 27 Nat’l Wildlife Fed’n, 524 F.3d at 930 (9th Cir. 2007) (holding 28 that the jeopardy definition requires consideration of recovery); 44 To “‘jeopardize the 50 C.F.R. § 402.02. Id. The 1 Gifford Pinchot Task Force, 378 F.3d at 1070 (holding that the 2 adverse modification regulations “singular focus” on survival 3 violated the ESA). 4 action would itself implement or bring about recovery. 5 Wildlands v. Thrailkill, 49 F. Supp. 3d 774, 787 (D. Ore. 2014). 6 In making these determinations, an agency must use the best However, it is not necessary that a federal Cascadia 7 available scientific and commercial data available. 16 U.S.C. 8 § 1536(a)(2); see San Luis & Delta-Mendota Water Auth. v. Jewell, 9 747 F.3d 581, 601–02 (9th Cir. 2014). Insufficient or incomplete 10 information does not excuse an agency’s failure to comply where 11 there was some additional superior information. 12 at 602. 13 available, we cannot insist on perfection.” 14 plaintiff fails to point to data omitted from consideration, the 15 claim fails. 16 1081 (9th Cir. 2006). 17 Jewell, 747 F.3d However, “where the information is not readily Id. Where a Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072, Plaintiff provides four reasons why the operative BiOp, the 18 Second Supplemental BiOp, fails to satisfy the ESA and is thus 19 arbitrary and capricious. 20 First Plaintiff argues that the FWS’s determination that the 21 Project will not jeopardize the NSO or adversely modify its 22 critical habitat is irrational due to the FWS’s own contrary 23 findings. 24 in the BiOp where the FWS indicated that the Project is 25 inconsistent with the 2011 RRP. 26 action meets most of the recommendations of the Recovery Plan, 27 but is inconsistent with portions of Recovery Action 10[.]”). 28 Because the FWS must consider NSO recovery in its analysis, P. MSJ at 26. Plaintiff directs the Court to a line FS-19319–20 (“The proposed 45 1 Plaintiff argues that FWS’s determination that the Project is 2 inconsistent with “the critical recovery action” contradicts its 3 jeopardy and adverse modification determinations. 4 P. MSJ at 27. The FWS adequately considered NSO recovery in its analysis, 5 Plaintiff just does not agree with its conclusions. See FS- 6 19319–21. First, the agency’s finding that the Project is 7 inconsistent with portions of one recovery action is not 8 dispositive because the 2011 RRP, and the recommended recovery 9 actions contained therein, is not a regulatory document and is 10 not binding on the agency. 11 F.3d 611, 614 (9th Cir. 2014); Cascadia Wildlands v. Thrailkill, 12 49 F. Supp. 3d at 787. 13 RRP and Recovery Action 10 reveals that the plan anticipates the 14 balance of competing forest management goals and acknowledges 15 that short-term habitat degradation may sometimes be appropriate 16 to achieve long-term forest health. 17 Heywood, 2:11-cv-02250, 2015 WL 5255346, at *12 (E.D. Cal. Sep. 18 9, 2015) (“Thus, the RRP does not recommend forgoing all land 19 management activities to avoid short-term consequences to the 20 NSO, and instead appears to support the proper implementation of 21 projects like this.”). 22 Project comports with this guidance: “Short-term adverse effects 23 to [NSOs] in the action area due to project implementation are 24 not expected to preclude recovery of the species in the recovery 25 unit ICC or rangewide. 26 provide benefits to the [NSO] through increased resiliency of 27 habitat.” 28 /// FS-19321. See Conservation Cong. v. Finley, 774 Furthermore, a fair reading of the 2011 See Conservation Cong. v. The FWS’s conclusion indicates the Long-term, the Smokey Project will No violation is found on this basis. 46 1 Plaintiff next argues that the FWS’s endorsement of the 2 placement of Activity Centers is not rationally connected to NSO 3 habitat needs. 4 issue with the placement of Activity Center 3063 and directs the 5 court to the USFS biologist’s characterization of her work as a 6 “crap shoot.” 7 “speculation and surmise” and “shoddy work” does not meet the 8 requisite level of caution and expertise. 9 P. MSJ at 27. FWS-2873. Specifically, Plaintiff takes Plaintiff argues that this admission of P. MSJ at 27–28. These comments occurred in the context of a larger 10 conversation. 11 decided that two additional Activity Centers should be designated 12 in the Project’s action area and that the two MNF employees would 13 “determine where to place the AC cite on the landscape, based on 14 information from the 2013 survey report (the direction in which 15 the pair flew off once they were offered mice) and the best 16 habitat available.” 17 USFS biologist sent the FWS biologist an email that said: “This 18 new AC designation is going to be a crap shoot. 19 Google Earth – the best stuff looks to be about ½ mile east from 20 the 2013 pair sighting.” 21 their consultation over email for several days, which involved 22 multiple maps and images, survey data, and discussion of best 23 suitable habitats. 24 The USFS biologist sent a map to FWS with the statement, “Here’s 25 my guess at what’s nesting/roosting and foraging. 26 what you think and I’ll charge forward from there.” 27 28 In a phone meeting, employees from both services FWS-2872. Following that conversation, the FS-2873. Take a look in The biologists continued FWS-2873–81, 2887–88, 2901–04, 2926, 2930–31. Let me know FWS-2894. Although the USFS’s candid commentary may indicate that the new Activity Center was not determined to the degree of 47 1 scientific certainty Plaintiff desires, Plaintiff does not 2 present any data that the agencies failed to consider in making 3 the determination. 4 delineation “protocol,” but the cited “protocol” says nothing 5 about the way in which the agencies identify the location for a 6 new activity center. 7 U.S. Fish and Wildlife Service also uses a 0.5 mile radius circle 8 around a [NSO] activity center to delineate the area most heavily 9 used by the subspecies during the nesting season, also known as Plaintiff refers to the FWS’s Activity Center See P. MSJ at 27 (citing FWS-1162) (“The 10 the core area.”). 11 core area associated with Activity Center 3063 “in such a way 12 that the relevant NSO pair’s nest site is outside of the core 13 area.” 14 surveyors discovered an actual nest site, only that they detected 15 owls that were “likely nesting,” and the biologists based the 16 activity center location on the direction the owls flew in and 17 the habitat in the area. 18 argument amounts to a challenge of the agencies’ interpretation 19 of the available data, to which this Court owes deference. 20 Plaintiff states that the USFS located the P. Rep. at 30. However, it does not appear that FS-19303; FWS-2872. Plaintiff’s Third, Plaintiff argues that the BiOp fails to contain any 21 analysis whatsoever of how the Project, together with other 22 timber sale projects, will affect the continuing function of the 23 Buttermilk LSR which is crucial to the conservation and continued 24 survival of the NSO in northwestern California. 25 The relevant regulations only require the agency to form an 26 opinion as to whether the action, taken together with cumulative 27 effects, is likely to jeopardize the continued existence of 28 listed species or result in the destruction or adverse 48 P. MSJ at 28. 1 modification of critical habitat. 2 Plaintiff does not cite any authority for the proposition that 3 the FWS needed to evaluate the continuing function of the 4 Buttermilk LSR in its analysis. 5 an obligation. 6 50 C.F.R. § 402.14(g). The Court will not impose such Finally, Plaintiff argues that the Operative BiOp is 7 arbitrary and capricious because the LOP requirement in the 8 Incidental Take Statement is different than the one in the 2012 9 BiOp. Specifically, the Operative BiOp does not appear to 10 protect unsurveyed nesting/roosting habitat in the event that 11 protocol level survey information is not current/available, in 12 contrast with the 2012 BiOp, which offers protection in that 13 situation. 14 However, the Operative BiOp is based on the Second Supplemental 15 BA, which states that it intends to incorporate the terms and 16 conditions of the 2012 BiOp, and thus the original LOP. 17 conservation measures in the Supplemental BA must be implemented, 18 see FS-19290, and thus the original LOP is incorporated into the 19 BiOp; the Court need not determine whether it was arbitrary and 20 capricious for the FWS to approve the Project with a differently 21 worded LOP. 22 23 24 P. MSJ at 28; compare FS-18792 with FS-19325. 2. The The USFS’s Failure to Insure Against Jeopardy and the Destruction or Adverse Modification of Critical Habitat Plaintiff claims that the USFS’s authorization of the 25 Project violates its substantive ESA Section 7(a)(2) duty not to 26 undertake actions that “jeopardize” a listed species or 27 “adversely modify” its habitat. 28 that the USFS violated its obligations both because the BiOp is P. MSJ at 29. 49 Plaintiff argues 1 legally flawed and because new information undercuts the BiOp. 5 2 “Arbitrarily and capriciously relying on a faulty Biological 3 Opinion” would violate an agency’s Section 7 duties. Wild Fish 4 Conservancy v. Salazar, 628 F.3d 513, 532 (9th Cir. 2010). 5 agency's reliance on a biological opinion based on ‘admittedly 6 weak’ information satisfies its ESA obligations as long as the 7 challenging party can point to no new information undercutting 8 the opinion's conclusions.” “An Id. 9 Both of Plaintiff’s arguments must fail. First, the Court 10 has determined that the BiOp is legally sufficient. 11 contrary to Plaintiff’s assertion in its Reply, the BiOp does 12 address road maintenance activities. 13 information Plaintiff points to is the letter from the USFS to 14 Trinity indicating which units will have a LOP if and when no 15 current protocol level surveys are performed. 16 This letter does not provide new information; it is the Forest 17 Supervisor’s interpretation of the Project’s terms and 18 conditions. 19 need to clarify the LOP so that the public and the agencies (and 20 the courts) know what compliance looks like. 21 does not hold, as a matter of law, that the USFS violated the ESA 22 in issuing the letter. 23 3. FS-19284. Further, Second, the new ECF No. 86-1. As noted several times in this Order, the USFS will However the Court USFS’s Illegal and Prohibited Take 24 Plaintiff argues that because the BiOp is arbitrary and 25 capricious, the Incidental Take Statement is invalid and all 26 27 28 5 This argument relies, in part, on a declaration that has been stricken from the record. The Court will not consider Plaintiff’s argument based on that declaration. 50 1 incidental take will be unauthorized and illegal. 2 argument rests solely on the Court’s determination with respect 3 to the BiOp. 4 arbitrary and capricious, this claim also fails. Plaintiff’s As the Court has found that the BiOp is not 5 E. NFMA Claim 6 “[T]he NFMA requires the Forest Service to develop a forest 7 plan for each unit of the National Forest System.” The Lands 8 Council v. McNair, 537 F.3d 981, 988 (9th Cir. 2008); 16 U.S.C. 9 § 1604(a). “After a forest plan is developed, all subsequent 10 agency action, including site-specific plans . . . must comply 11 with the NFMA and be consistent with the governing forest plan. 12 Id. (citing Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 13 957. 962 (9th Cir. 2002)); 16 U.S.C. § 1604(i). 14 By its terms, the Mendocino National Forest Plan 15 incorporates the NSO Recovery Plan. See Conservation Cong. v. 16 U.S. Forest Service, No. 2:15-00249, 2016 WL 727272 (E.D. Cal. 17 Feb. 24, 2016) (finding that a similarly worded forest plan 18 incorporates the NSO Recovery Plan). 19 of the Analysis of the Management Situation: Resource 20 Environment” states, with respect to wildlife and fish: 21 “Management activities will comply with species recovery plans 22 (threatened and endangered species) and habitat management plans, 23 as they apply to the Mendocino National Forest.” P. MSJ at 20; 24 FS-5811 (emphasis added). 25 Direction: Management Prescriptions,” the Plan states: “Late- 26 Successional Reserves are to be managed to protect and enhance 27 conditions of late-successional and old-growth forest ecosystems, 28 which serve as habitat for late-successional and old-growth The Forest Plan’s “Summary In a later section on “Management 51 1 related species including the northern spotted owl. . . . 2 Activities required by recovery plans for listed threatened and 3 endangered species take precedence over LSR standards and 4 guidelines.” 5 FS-5819 (emphasis added). Plaintiff argues that the Project violates the 2011 RRP for 6 the NSO and is thus inconsistent with the Forest Plan and 7 violates the NFMA. 8 does not impose mandatory requirements. P. MSJ at 20. Defendants argue that the plan D. Cr. Mot. at 20. 9 Although “recovery plan objectives are discretionary for 10 federal agencies,” Heywood, 2015 WL 5255346, at *1, that rule 11 does not end the Court’s inquiry. 12 document has been clearly incorporated into a Forest Plan or 13 other binding document, its requirements become mandatory.” 14 Ecology Ctr. v. Castaneda, 574 F.3d 652, 660 (9th Cir. 2009). 15 When such a document is incorporated into a forest plan, courts 16 look to the language of the guideline to determine whether it 17 creates a mandatory standard. 18 few, isolated provisions cast in mandatory language does not 19 transform an otherwise suggestive set of guidelines into binding 20 regulations.” 21 plaintiff’s claim is merely advisory or aspirational, the answer 22 must be ‘no.’” 23 incorporated “Old Growth Guidelines,” the Ninth Circuit declined 24 to mandate compliance because the relevant portions were cast in 25 suggestive (i.e. “should” and “may”) rather than mandatory 26 (“must” and “only”) terms. 27 28 Id. Id. “[W]here an otherwise advisory Id. at 660. “[T]he presence of a “If the guideline language underlying the For instance, where a Forest Plan Id. at 660–61. Applying these principles to the present dispute, it is clear that the cited sections of the 2011 RRP are merely 52 1 suggestive and do not impose mandatory terms on the USFS. 2 Plaintiff first argues that the Project violates Recovery 3 Action 10. 4 that the Project “is inconsistent with portions of Recovery 5 Action 10” in the 2014 BiOp as proof of this claim. 6 20. 7 protect all current and historically occupied NSO habitat.” 8 Rep at 19–20. 9 In the 2014 and 2015 BiOps, the FWS expressly found P. MSJ at The Recovery Action recommends that the USFS “retain and P. The Court finds that the language of Recovery Action 10 is 10 suggestive and framed in a manner that anticipates the balancing 11 of competing goals. 12 Actions as “near-term recommendations to guide the activities 13 needed to accomplish the recovery objectives and achieve the 14 recovery criteria.” 15 10 consists of “interim guidance.” 16 “Land managers should . . .”) priorities for consideration, but 17 recognizes the need for balance: 18 19 20 21 22 The RRP’s Executive Summary defines Recovery FS-4239. Further, most of Recovery Action This guidance suggests (i.e. As a general rule, forest management activities that are likely to diminish a home range’s capability to support spotted owl occupancy, survival and reproduction in the long-term should be discouraged. However, we recognize that land managers have a variety of forest management obligations and that spotted owls may not be the sole driver in these decisions. Here, active forest management may be necessary to maintain or improve ecological conditions. 23 FS-4311–12. 24 mandatory requirements on the USFS and thus it does not find a 25 violation. 26 The Court cannot read this section to impose Plaintiff also contends that the Project is inconsistent 27 with the adaptive management approach to forest management that 28 the RRP prescribes. See P. Rep. at 3–7. 53 While Plaintiff is 1 correct that adaptive management receives special emphasis in the 2 2011 RRP, these objectives do not impose mandatory requirements 3 on the USFS for specific projects. 4 The RRP explains: In order to deal with uncertainty and risk the Service will employ an active program of adaptive management. Adaptive management includes identifying areas of uncertainty and risk, implementing a research and monitoring approach to clarify these areas, and making decisions to change management direction that is not working while still maintaining management flexibility. Where possible, the implementation of the recovery actions included within this Revised Recovery Plan should be designed in a manner that provides feedback on the efficacy of management actions such that the design of future actions can be improved. 5 6 7 8 9 10 11 FS-4260 (emphasis added). Adaptive management is thus a tool 12 that the FWS intends to use to gather knowledge for best managing 13 the species. See FS-4262. 14 objectives to require that every project be implemented with 15 “rigorous monitoring and [an] adaptive management program” 16 attached. See P. MSJ at 4. FS-4280. The Court cannot read these Again, there is no violation. 17 In its Reply, Plaintiff argues that the cutting of larger 18 trees and simplification of vertical and horizontal structures 19 violate the 2011 RRP. 20 sections Plaintiff cites are also cast as “recommendations” and 21 do not impose mandatory obligations on the USFS. 22 4253 (“In order to reduce or not increase this potential 23 competitive pressure while the threat from barred owls is being 24 addressed, this Revised Recovery Plan now recommends conserving 25 and restoring older, multi-layered forest across the range of the 26 spotted owl.”). 27 reasons either. 28 /// P. Rep. at 5–6. The Court finds that the See, e.g., FS- The USFS did not violate the RRP for these 54 1 2 The Court finds that the USFS did not violate the NFMA on Plaintiff’s argued basis. 3 IV. 4 ORDER For the reasons set forth above, the Court GRANTS 5 Plaintiff’s Motion for Summary Judgment on the First Claim for 6 Relief (Failure to Take a Hard Look) and the Fourth Claim for 7 Relief (Failure to Develop a Reasonable Range of Alternatives) of 8 the Second Amended Complaint. 9 motion with respect to the remaining Claims for Relief and thus ECF No. 65. The Court DENIES the 10 GRANTS Defendants’ and Intervenor’s Cross Motions for Summary 11 Judgment on the Second, Third, Fifth, Sixth, Seventh, Eighth, and 12 Ninth Claims for Relief, and the Supplemental Complaint, ECF No. 13 102. 14 relief/remedy to be imposed after receipt and consideration of 15 the parties’ supplemental briefs on this issue. 16 17 The Court will issue a separate Order regarding the IT IS SO ORDERED. Dated: February 16, 2017 18 19 20 21 22 23 24 25 26 27 28 55

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