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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CONSERVATION CONGRESS,

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Plaintiff,

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v.
UNITED STATES FOREST SERVICE,
UNITED STATES FISH AND
WILDLIFE SERVICE,

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No.

2:13-cv-01977-JAM-DB

ORDER RE PLAINTIFF’S MOTION AND
DEFENDANTS’ CROSS MOTION FOR
SUMMARY JUDGMENT

Defendants,
&
TRINITY RIVER LUMBER COMPANY,

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Defendant
Intervenor.

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And yesterday the bird of night did sit
Even at noon-day upon the marketplace
Hooting and shrieking.

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- William Shakespeare, Julius Caesar, act 1, sc. 2.

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This litigation concerns the continuing viability of the

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revered Northern spotted owl (“NSO”) and whether it may soon

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portend its own demise at the hands of its protector, the federal

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government.

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execute the Smokey Project (“Project”), a proposal to administer

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fuel and vegetative treatments intended to further habitat and

The United States Forest Service (“USFS”) plans to

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fire management goals in the Mendocino National Forest (“MNF”)

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and contribute to the MNF’s timber production goals.

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engaged with interested parties as it developed the Project,

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leading to its decision to adopt the proposal.

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Congress (“Plaintiff”) participated throughout that process,

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advocating for the NSO and its old-growth habitat.

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challenges the USFS’s final decisions, as well as the Fish and

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Wildlife Service’s (“FWS”; collectively “Defendants”)

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contributions to the end result.

The USFS

Conservation

It now

As described below, the Court

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agrees that the USFS failed to meet some of its statutory

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obligations.

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I.

FACTUAL BACKGROUND

The USFS began scoping for the Smokey Project (“Project”) in

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December 2009.

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of comments the following March and continued communicating with

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the USFS over the next year.

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3627, 3599–3626, FS-3585.

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Draft Environmental Assessment and opened the 30-day Objection

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Period.

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the USFS and Plaintiff had a conference call concerning the

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project, followed by Plaintiff’s submission of its first written

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Objections in August, which were followed by an in person

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Objection Resolution meeting.

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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

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impacts on endangered and threatened species.

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early 2011, the agencies conferred over whether or not the

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Project would adversely affect the NSO.

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Service Administrative Record (“FWS”)-1–107; FS-18874–94.
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From Fall 2009 to

See Fish and Wildlife
This

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determination dictates whether a formal—and more extensive—

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consultation between the agencies is required pursuant to the

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Endangered Species Act.

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that the Project “may affect, [and is] likely to adversely

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affect” the NSO (a “MALAA” determination), FWS-1162–64, while the

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USFS maintained that a “may affect, not likely to adversely

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affect” determination—which would not require formal

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consultation—was appropriate for the Project, FS-18882–86; 50

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C.F.R. § 402.14.

See infra Part III.D.

The FWS concluded

Due to this disagreement, the agencies elevated

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the Project to a Level 2 team for review.

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prepared and submitted a Final Biological Assessment (“BA”) for

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the FWS to review and requested formal consultation on July 5,

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2011.

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the USFS sent over the BA, the agency had also concluded that an

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MALAA finding for the NSO was appropriate due to the Project’s

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potential impact on prey species.

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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

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revealed a root disease infection that required Project

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modification.

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stumps in order to prevent the spread of the disease.

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The agency reopened scoping for the Project in February 2012 to

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address three substantive changes to the Project, including the

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use of borax and the change in the USFS’s determination that the

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Project warranted a MALAA finding.

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its second set of scoping comments at the end of February, which

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“incorporate[d] by reference [its] original comments as well as

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[its] original Objection comments (attached).”

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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
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USFS on March 15, 2012.

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Project is not likely to jeopardize the continued existence of

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the NSO rangewide or within the recovery unit.

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based this conclusion on the fact that no NSO habitat loss was

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expected and habitat functionality would be maintained.

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18788.

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harassment/mortality in two home ranges—were expected to be short

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term, returning back to normal within two to three years post-

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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

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not likely to result in adverse modification of the NSO critical

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habitat, and that habitat degradation was not expected to impede

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the recovery function of critical habitat rangewide or within the

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province.

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accompanied the BiOp.

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imposed a Limited Operating Period (“LOP”) from February 1st to

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September 15th in certain units in accordance with recent,

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protocol-level survey results.

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the conservation measures already pleaded in the BA, which the

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USFS must implement.

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“Monitoring Requirements” that require the agency to document the

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progress of the action and its effects on the NSO to the FWS in

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the form of annual monitoring reports containing a minimum of the

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following information: “progress/status of the proposed project,

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amount and type of habitat removed or modified, northern spotted

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owl survey results, and any changes to project implementation not

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discussed in the biological assessment.”

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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
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Objection Period.

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objections.

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published the Final Environmental Assessment and the Decision

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Notice.

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approximately 6400 acres and will include fuel treatments through

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implementation of Strategically Placed Land Area Treatments

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across the landscape, timber harvest in matrix lands, and

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improvement of plantations, meadows, hardwood and late

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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

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that the Project’s actions will not have a significant effect on

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the quality of the human environment, thus the agency would not

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be preparing an environmental impact statement.

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Forest Supervisor decided to implement the proposed Project,

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which incorporates the terms and conditions of the ITS.

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FS-12.

The

FS-11.

On December 4, 2012, the FWS published a final, revised rule

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designating critical habitat for the NSO (“2012 Critical Habitat

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Rule”).

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Project, USFS issued a Supplemental Biological Assessment.

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Supplemental BA concluded that the new finding with respect to

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NSO critical habitat is MALAA due to short-term adverse effects

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to NSO nesting/roosting and foraging habitat.

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The USFS reinitiated consultation with the FWS on that basis.

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FS-19089.

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Project is not likely to jeopardize the NSO nor adversely modify

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or destroy its designated critical habitat. FS-18996.

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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

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2015, after surveyors discovered NSOs in a new location in the

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Project area.

FS-19387.

This led to the designation of two new
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activity centers.

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Supplemental BA at the end of May 2015 and the FWS issued its

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BiOp, with the same jeopardy and adverse modification

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determination, on July 24, 2015.

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2015, the USFS published a Supplemental Information Report,

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summarizing the agency’s “analysis supporting [its] determination

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that there is no need for supplemental NEPA analysis arising from

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the new circumstances and information related to the Project.”

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FS-1.

FS-19348.

The agency sent the FWS its Second

FS-19243–79.

On November 30,

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While consultation on the Project was ongoing, the FWS

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published the Revised Recovery Plan for the Northern Spotted Owl

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(“2011 RRP”).

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actions and criteria that are considered necessary to recover

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listed species.”

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one day after USFS biologists signed off on the Project’s BA—and

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replaced the 2008 version of the plan.

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frequently referenced in agency documents and is central to some

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of Plaintiff’s claims.

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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

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the Project on September 23, 2013, alleging violations of the

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National Environmental Policy Act (“NEPA”), the Endangered

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Species Act (“ESA”), the National Forest Management Act (“NFMA”),

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and the Administrative Procedure Act (“APA”).

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case was twice stayed as the USFS reinitiated consultation with

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the FWS at the end of 2013 and again in 2015.

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The second stay terminated with the completion of consultation in

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July 2015 and Plaintiff filed its Second Amended Complaint, the
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ECF No. 1.

The

ECF Nos. 15 & 53.

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operative complaint in this case, that October.

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65.

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(“Intervenor”) moved to intervene as a defendant-intervenor in

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this case, which the Court allowed after the second stay lifted.

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ECF Nos. 28 & 63.

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purchased the Smokey Stewardship Project in order to harvest the

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Project trees and process the logs into lumber through its local

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mill.

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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

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26, 2016, based on the Supplemental Information Report that

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issued after Plaintiff had filed the Second Amended Complaint.

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ECF Nos. 100, 101, & 102.

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The parties filed their Motion and Cross-Motions for Summary

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Judgment in July and September of 2016, respectively.

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103, 106, & 109.

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Declaration by Tonja Chi, which Defendants moved to strike.

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No. 103-4 & 107.

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would not request the Court to consider extra-record declarations

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in the case, the Court granted Defendants’ motion to strike the

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declaration.

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Defendants’ unopposed motion to strike paragraphs 11 and 12 from

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Denise Boggs’ Declaration and paragraph 10 from Ellen Drell’s

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Declaration.

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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

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Summary Judgment on February 2, 2017.

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under submission and ordered further briefing on the question of

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remedies.

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///

ECF No. 120.

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The Court took the matter

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III.

OPINION

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A.

Standard of Review

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Because Plaintiff’s claims arise under Acts that do not

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provide a separate standard for review, the claims are reviewed

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under the standards of the APA.

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Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014).

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court does not employ the usual summary judgment standard in this

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context because, rather than resolving facts, the court is to

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determine whether or not “the evidence in the administrative

See San Luis & Delta-Mendota
A

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record permitted the agency to make the decision it did.”

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for Sierra Nevada Conservation v. U.S. Forest Service, 832 F.

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Supp. 2d 1138, 1148 (E.D. Cal. 2011).

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uphold an agency’s decision unless it is arbitrary, capricious,

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an abuse of discretion, or otherwise not in accordance with law.

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Jewell, 747 F.3d at 601; 5 U.S.C. § 706(2).

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Court’s] inquiry must be thorough, the standard of review is

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highly deferential.”

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omitted).

Ctr.

Thus, this Court will

“Although [the

Id. (citations and quotation marks

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B.

Standing

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Defendants and Intervenor do not challenge Plaintiff’s

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standing to pursue its claims.

Plaintiff submitted declarations

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from three of its members, including Executive Director Denise

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Boggs, in order to establish standing.

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Boggs (“Boggs Decl.”), ECF No. 103-1; Declaration of Douglas

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Bevington (“Bevington Decl.”), ECF No. 103-2; Declaration of

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Ellen Drell (“Drell Decl.”), ECF No. 103-3.

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states that they visit the relevant area of the Mendocino

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National Forest for recreational purposes, including looking for
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Declaration of Denise

Each declarant

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NSOs.

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Drell Decl. at ¶¶ 2, 3, 5.

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specific plans to visit the area in the future.

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¶ 8; Bevington Decl. at ¶ 2; Drell Decl. at ¶ 6.

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concerned that the Project will harm the forest and the NSO and

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relies on Plaintiff to litigate those interests on their behalf.

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Boggs Decl., passim; Bevington Decl. at ¶¶ 5–8; Drell Decl. at

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¶ 7–8.

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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.

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2:15-00249, 2016 WL 727272, at *2 (E.D. Cal. Feb. 24, 2016)

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(finding that Conservation Congress had standing); Cottonwood

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Envtl. Law Ctr. v. U.S. Forest Service, 789 F.3d 1075, 1079–80

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(9th Cir. 2015) (describing the standard).

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C.

NEPA Claims

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The National Environmental Policy Act is our basic national

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charter for protection of the environment.

40 C.F.R. § 1500.1.

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NEPA “has twin aims.

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obligation to consider every significant aspect of the

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environmental impact of a proposed action.

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that the agency will inform the public that it has indeed

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considered environmental concerns in its decisionmaking process.”

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Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1066 (9th Cir.

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2002) (internal quotation marks and citations omitted).

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does not impose substantive environmental obligations; “[r]ather,

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it establishes ‘action-forcing’ procedures that require agencies

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to take a ‘hard look’ at environmental consequences.”

First, it places upon a federal agency the

Second, it ensures

NEPA

Id.

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Under NEPA, federal agencies must provide a detailed

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environmental impact statement (“EIS”) for every major federal
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action significantly affecting the quality of the human

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environment.

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contemplating such an action may first prepare an environmental

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assessment (“EA”) in order to determine whether an EIS is

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necessary.

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Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998).

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Should an agency determine that an EIS is unwarranted, it will

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issue a

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(“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

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explain why the action will not have a significant effect on the

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human environment.

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714, 717 (9th Cir. 1988); 40 C.F.R. § 1508.13.

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See Save the Yaak Comm. v. Block, 840 F.2d

The Healthy Forest Restoration Act (“HFRA”), passed in 2003,

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modifies an agency’s NEPA obligations for qualifying projects.

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The purposes of the HFRA include, inter alia, reducing wildfire

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risks, enhancing efforts to protect watersheds and address

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threats to forest and rangeland health, and protecting,

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restoring, and enhancing forest ecosystem components to promote

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the recovery of threatened and endangered species.

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§ 6501.

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implemented under the HFRA on federal land if the land contains

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threatened or endangered species habitat where “natural fire

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regimes on that land are identified as being important for, or

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wildfire is identified as a threat to” a threatened species, the

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project will provide enhanced protection from catastrophic

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wildfire for the species or its habitat, and the project complies

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with any applicable guidelines specified in any management or

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recovery plan for the species.

16 U.S.C.

An authorized hazardous fuel reduction project may be

16 U.S.C. § 6512(a).
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Except as

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provided in the HFRA, authorized projects must still comply with

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NEPA.

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project.

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administrative review process and limits the range of project

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alternatives that must be considered in detail.

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§§ 6514(c), 6515; 36 C.F.R. §§ 218.1–218.16.

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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

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fuels reduction project and Plaintiff does not challenge that

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designation in this litigation.

The USFS explained that the

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Project qualifies under the HFRA because the Project is located

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in a Late Successional Reserve (“LSR”) that provides habitat for

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the NSO, includes portions of NSO critical habitat, and is

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classified as Fire Regime Condition Class 3, which indicates

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severe departure from historic conditions and significant chance

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for the loss of species or habitats.

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FS-23.

Plaintiff argues that the USFS violated NEPA by: (1) failing

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to prepare an EIS; (2) failing to adequately assess cumulative

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impacts; (3) failing to evaluate alternatives; (4) failing to

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take a hard look at the Project’s impacts; and (5) failing to

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prepare a supplemental EA or EIS.

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Summary Judgment (“P. MSJ”), ECF No. 103.

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consider each of these claims in turn, noting that several of

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Plaintiff’s arguments apply to more than one claim.

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1.

See Plaintiff’s Motion for
The Court will

Failure to Prepare an Environmental Impact
Statement

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26

“An EIS must be prepared if ‘substantial questions are

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raised as to whether a project . . . may cause significant

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degradation of some human environmental factor.’”
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Blue Mountains

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Biodiversity Project, 161 F.3d at 1212 (quoting Idaho Sporting

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Cong. v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1996)).

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may prevail on its claim that the USFS violated its statutory

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duty by raising these questions and is not required to show that

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the significant effects will in fact occur.

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Biodiversity Project, 161 F.3d at 1212.

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preparing an EIS by making conclusory assertions that an activity

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will have only an insignificant impact on the environment.”

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Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 864

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Plaintiff

Blue Mountains

An agency “cannot avoid

(9th Cir. 2004).

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In order to determine whether an action “significantly”

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affects the environment an agency must consider the context and

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intensity of the project.

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“that the significance of an action must be analyzed in several

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contexts such as society as a whole, the affected region, the

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affected interests, and the locality.”

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Intensity “refers to the severity of impact” and requires the

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responsible officials to consider ten separate factors in order

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to evaluate an action’s intensity.

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presence of even just “one of these factors may be sufficient to

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require an EIS in appropriate circumstances.”

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402 F.3d at 865 (citing Nat’l Parks & Conservation Ass’n v.

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Babbitt, 241 F.3d 722, 731 (9th Cir. 2001) abrogated in part by

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)).

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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

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2012.

Plaintiff claims this decision was arbitrary and

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capricious because the Project implicates six of the ten

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///
12

1

intensity factors. 1

2

a.

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Thus, Plaintiff argues, an EIS was required. 2
Context

The significance of a project “varies with the setting of

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the proposed action.”

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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

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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

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critical habitat as determined by the 2012 Critical Habitat Rule.

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FS-4, 19101–2.

FS-21–22.

The region’s characteristics are discussed in

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1

17
18
19
20
21
22
23
24
25
26
27
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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

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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

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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

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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