Conservation Congress v. United States Forest Service et al

Filing 170

ORDER signed by District Judge John A. Mendez on 3/2/2018 GRANTING 162 Motion to Amend the Judgment to Dissolve the Injunction. (Washington, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CONSERVATION CONGRESS, 11 Plaintiff, 12 13 14 v. UNITED STATES FOREST SERVICE and UNITED STATES FISH AND WILDLIFE SERVICE, 15 16 17 No. 2:13-cv-01977-JAM-DB ORDER GRANTING DEFENDANTS’ MOTION TO AMEND THE JUDGMENT AND DISSOLVE THE INJUNCTION Defendants, and TRINITY RIVER LUMBER COMPANY, 18 Intervenor Defendant. 19 20 I. INTRODUCTION 21 22 Conservation Congress (“Plaintiff”) sued the United States 23 Forest Service (“USFS”) and the United States Fish and Wildlife 24 Service (“FWS”) for violations of the National Environmental 25 Policy Act (“NEPA”), the Endangered Species Act (“ESA”), the 26 National Forest Management Act (“NFMA”), and the Administrative 27 Procedure Act (“APA”) related to the Smokey Project (or 28 “Project”). The Smokey Project is a plan to administer fuel and 1 1 vegetative treatments to further habitat and fire management 2 goals in the Mendocino National Forest. 3 contribute to timber production. 4 Company (“Trinity”) intervened in the case; Trinity purchased the 5 stewardship contract for the Smokey Project and will be 6 harvesting trees ones the Project commences. 7 this Court granted Plaintiff summary judgment on two of its 8 claims against the USFS, remanded the Project to the agency to 9 cure the noted defects, and enjoined tree harvesting of trees The project will also The Trinity River Lumber About a year ago, 10 exceeding 20 inches dbh. 11 Court to dissolve the injunction (ECF No. 162). 1 12 II. 13 Now the USFS and Intervenor move the FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND On February 16, 2017, the Court granted Plaintiff’s Motion 14 for Summary Judgment on its claims that the USFS failed to take a 15 hard look and failed to develop a reasonable range of 16 alternatives in analyzing the proposed Smokey Project (the First 17 and Fourth Claims). 18 Specifically, the Court found that the USFS: 19 • Failed to address reasonable alternatives, specifically 20 the suggested diameter caps, SJ Order (ECF No. 121) at 21 31–37, 39; 22 • 23 Stated the Limited Operating Period inconsistently throughout the record, id. at 39–40; and 24 • Failed to address how its failure to do the monitoring 25 required for other projects impacts the Smokey Project. 26 Id. at 40–41. 27 28 1 A hearing was held on this motion on February 27, 2018. 2 1 The Court also expressed concern that the Environmental 2 Assessment contained varying statistics regarding the number of 3 acres to be treated that, without much explanation of these 4 differences, made the document confusing. 5 did not however include this issue as a ground for its decision. 6 Id. at 41. The Court In all other respects, the Court found in favor of 7 Defendants and granted their and Intervenor’s Cross Motions for 8 Summary Judgment on the Second, Third, Fifth, Sixth, Seventh, 9 Eighth, and Ninth Claims, and the Supplemental Claim. 10 The Court requested further briefing on the proper remedy 11 and issued a Final Judgment on May 26, 2017 (ECF No. 142). 12 Court remanded the Project to the USFS with instructions to 13 prepare supplemental NEPA analysis that cures the NEPA violations 14 identified in the Court’s Merits Order and complies with the 15 applicable statutes. 16 that no EIS would be required, it was ordered to circulate the 17 analysis and draft revised DN/FONSI to the public. 18 Court ordered the USFS to accept objections for a 20-day period 19 from eligible parties and complete its supplemental documentation 20 and public involvement process no later than December 1, 2017. 21 Finally, the Court enjoined Defendants and Intervenor from 22 removing any trees with 20 inches dbh or greater. 23 retained jurisdiction to dissolve the injunction upon a showing 24 that the USFS has complied with this Court’s Order and satisfied 25 its obligations under NEPA. 26 Final Judgment at 7. The If the USFS concluded Id. The The Court Id. at 8. The USFS issued a Draft Supplement to the Smokey Project 27 Environmental Assessment on September 27, 2017. 28 Let. at 1. Mot. at 2; Obj. Plaintiff submitted objections on October 16 and 17, 3 1 2017. Id.; Pl. Obj. 2 Obj. Resp., ECF No. 162-3. 3 to Environmental Assessment and an affirmation of its prior 4 DN/FONSI (Decision Notice and Finding of No Significant Impact) 5 on November 27, 2017. The USFS responded to those objections. The USFS then issued its Supplement SEA; Aff. Dec. 6 III. OPINION 7 A. 8 A district court may relieve a party from a final judgment 9 Legal Standards under Federal Rule of Civil Procedure 60(b). Rule 60(b)(5) 10 allows courts to relieve a party or its legal representative from 11 a final judgment, order, or proceeding if the judgment has been 12 satisfied, released or discharged. 13 or dissolution of an injunction bears the burden of establishing 14 that a significant change in facts or law warrants revision or 15 dissolution of the injunction.” 16 1170 (9th Cir. 2000). 17 to the underlying reasons for the injunction.” 18 Mortg. Corp., No. C08-969Z, 2008 WL 4741492, at *2 (W.D. Wash. 19 Oct. 24, 2008). 20 “A party seeking modification Sharp v. Weston, 233 F.3d 1166, “A significant change is one that pertains Moon v. GMAC In deciding whether to dissolve an injunction, the Court’s 21 review of the agency’s action is limited to the scope of the 22 prior litigation and the injunction order at issue. 23 IV, Inc. v. Federal Transit Administration, No. LA CV13-00378 JAK 24 (PLAx), 2016 WL 741685, at *6–7 (C.D. Cal. Feb. 5, 2016) (citing 25 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 162 (2010)). 26 It is not an opportunity for a plaintiff to raise issues that 27 were not addressed in the summary judgment order. 28 claims must be presented through a new action and cannot serve as 4 See Today’s Id. New 1 a basis to deny a request to dissolve the injunction. 2 also Orantes-Hernandez v. Gonzales, 504 F. Supp. 2d 825, 844 3 (C.D. Cal. 2007) (finding a new due process claim exceeds the 4 permissible scope of the court’s inquiry in deciding the 5 government’s motion to dissolve the 1988 injunction). 6 limitations build upon a principle common to all federal 7 litigation, a plaintiff cannot raise claims it failed to put the 8 defendant on notice of by its complaint. 9 Imports, Inc., 457 F.3d 963, 968 (9th Cir. 2006). 10 Id.; see These See Pickern v. Pier 1 In addition to these principles, Intervenor argues, citing 11 Heartland Regional Medical Center, that the Court need not 12 evaluate the merits of the remand decision before dissolving the 13 injunction. 14 Medical Center v. Leavitt, the D.C. Circuit found that where a 15 court remanded a case to an agency due to the agency’s failure to 16 consider or respond to reasonable alternatives, the agency 17 complied with the judgment by filling the analytical gap and 18 incorporating its rationale for rejecting those alternatives into 19 the decision documents. 20 the Circuit explained, “whether or not the agency’s [post-remand] 21 rejection of the alternatives was arbitrary is a determination 22 that must be made in [a] separate APA action challenging [the 23 agency’s] post-remand decisions.” 24 discussion favors a narrow construction of the action required on 25 remand, its instructive value in the present case is very limited 26 because the Heartland decision involved a plaintiff’s motion to 27 enforce a judgment, not a decision whether to dissolve an 28 injunction. Joinder, ECF No. 165, at 4. In Heartland Regional 415 F.3d 24, 29 (D.C. Cir. 2005). Id. at 30. But, While this The more appropriate standards on this motion are 5 1 cited above. 2 “NEPA imposes only procedural requirements to ensure that 3 the agency, in reaching its decision, will have available, and 4 will carefully consider, detailed information concerning 5 significant environmental impacts.” 6 23 (2008) (internal quotations omitted). 7 guarantees a particular procedure, not a particular result.” 8 Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 737 (1998). 9 10 B. Winter v. NRDC, 555 U.S. 7, “NEPA . . . simply Argument Summary The USFS seeks dissolution of the injunction. ECF No. 162. 11 It argues, and provides supporting documentation to show, that it 12 has addressed the Court’s three main concerns in its supplemental 13 analysis. 14 Assessment (“SEA”) clarifies the Project’s acreage figures and 15 explains the confusion from earlier iterations of this data. 16 Intervenor joined in this motion, adding some additional 17 arguments and explaining that it has not commenced cutting 18 because the Project was not economically feasible with the 19 Court’s diameter cap. 20 Additionally, the Supplemental Environmental Joinder at 2. Plaintiff opposes the motion. ECF No. 166. First, it 21 argues that the failure to conduct a detailed analysis of a 22 single “action alternative” to the Smokey Project is a violation 23 of NEPA’s alternative analysis requirement. 24 contests the USFS’s alternatives analysis as (1) skewed toward 25 selecting an alternative with intensive cutting, (2) based upon 26 fire conditions likely to occur during 97th percentile weather 27 conditions (which it claims is arbitrary and capricious), 28 (3) flawed by its failure to explain why the only analyzed action 6 Opp’n at 2. It 1 alternative calls for tree cutting far more extensive than 2 necessary, and (4) contrary to underlying management objective of 3 assuring that tree mortality not exceed 25 percent. 4 Next, Plaintiff argues that USFS has failed to meet its 5 monitoring obligations from sources like the Mendocino National 6 Forest Land and Resource Management Plan and the USFWS’s “2011 7 Northern Spotted Owl Survey Protocol.” 8 Plaintiff argues that the supplemental analysis failed to clarify 9 the LOPs. Id. at 13. Id. at 4–12. Finally, 10 In Reply, the USFS argues that Plaintiff’s Opposition seeks 11 to expand the scope of this litigation and raises issues that do 12 not go to the NEPA deficiencies the Court identified in its 13 earlier orders. 14 criticisms are procedurally improper and that it fully complied 15 with the Court’s Order. 16 Plaintiff has not shown any deficiencies in the analysis on 17 remand. 18 persuasively, that “the deficient alternatives analysis was the 19 foundation of the Court’s decision to issue an injunction.” 20 Reply at 2; J. Order at 3. 21 deciding whether or not to dissolve the injunction should be the 22 supplemental alternatives analysis. 23 Id. C. It argues that Plaintiff’s Similarly, Intervenor contends that Intervenor Reply at 1. 24 25 Fed. Reply at 1. Intervenor also argues, Therefore, the central question in Alternatives Analysis 1. MSJ Ruling The purpose and need of a project defines the scope of the 26 alternatives analysis and an agency need only evaluate 27 alternatives that are reasonably related to the project’s 28 purposes. League of Wilderness Defenders-Blue Mountains 7 1 Biodiversity Project v. U.S. Forest Service, 689 F.3d 1060, 1069 2 (9th Cir. 2012). 3 to define the purpose and need of a project. 4 Dist. v. U.S. Dep’t of the Interior, 376 F.3d 853, 866 (9th Cir. 5 2004). 6 “purpose and need” of the Project. 7 Courts afford agencies considerable discretion Westlands Water This Court has already deferred to USFS’s defined SJ Order at 30. Under NEPA, “[a]gencies are required to consider 8 alternatives in both EISs and EAs and must give full and 9 meaningful consideration to all reasonable alternatives.” Te- 10 Moak Tribe of West. Shoshone of Nev. v. U.S. Dep’t of Interior, 11 608 F.3d 592, 601–02 (9th Cir. 2010). 12 but unexamined alternative renders an environmental impact 13 statement inadequate.” 14 F.A.A., 161 F.3d 569, 575 (9th Cir. 1998) (internal quotation 15 marks and citation omitted) (applying this rule in the EA 16 context). 17 Restoration Act (“HFRA”)—like this one—need only consider three 18 alternatives: the proposed agency action; the alternative of no 19 action; and an additional action alternative, if the additional 20 alternative—(i) is proposed during scoping or the collaborative 21 process under subsection (f); and (ii) meets the purpose and need 22 of the project, in accordance with regulations promulgated by the 23 Council on Environmental Quality. 24 “The existence of a viable Morongo Band of Mission Indians v. Projects authorized under the Healthy Forest 16 U.S.C. § 6514(c). The Court previously found that the USFS’s failure to 25 consider or acknowledge an alternative with a larger diameter cap 26 was arbitrary and capricious, in light of the numerous diameter 27 cap suggestions made during the collaborative process leading up 28 to the Project. 8 1 2. 2 USFS Supplemental Analysis The USFS cured this deficiency in its Supplement to 3 Environmental Assessment (“SEA”), Section 5, Issue 1 – Range of 4 Reasonable Alternatives. 5 two versions each of an 18 inches, 20 inches, and 24 inches dbh 6 limit. 7 inconsistent with key elements of the Smokey Project’s purpose 8 and need, and would fail to achieve the agency’s policy 9 objectives for the project.” The agency considered 6 alternatives, It concluded that “all six alternatives would be SEA at 5. It explains that the 10 alternatives were considered with two primary purposes in mind: 11 (1) the need to retain NSO foraging habitat, and (2) the need to 12 thin overstory trees. 13 commercial thin units are the only treatments to contribute to 14 timber production, a secondary purpose and need of the Smokey 15 Project. 16 The analysis also notes that the Id. at 5. The agency concluded that the diameter limit alternatives 17 would fail to sufficiently protect NSO foraging habitat and would 18 significantly reduce the amount of timber offered for sale. 19 at 7. 20 determined by a two part test: “First, the alternative must not 21 cause a direct loss of NSO foraging habitat due to excessive 22 canopy reduction. 23 hazard enough to prevent loss of NSO foraging habitat to 24 wildfire. Both tests must be passed for an alternative to be 25 consistent with the project’s purpose and need.” 26 first criteria, the USFS required that an alternative not reduce 27 canopy cover below 40%; anything below that point would not 28 function as foraging habitat and would be downgraded to dispersal Id. The primary purpose—protecting NSO foraging habitat—was Second, the alternative must reduce fuel 9 Id. For the 1 habitat. 2 fire basal area mortality to 25 percent or less, as determined 3 using the Forest Vegetation Simulator (“FVS”) model with 97th 4 percentile weather conditions. 5 App. 1 at 2. For the second, the USFS limited post- Id. at 3–4. The diameter caps failed the first round of modeling (18A, 6 20A, and 24A). 7 reduction goals but resulted in significant reduction in canopy 8 cover because of the clumpy size class distribution in the 9 stands. 10 11 Id. SEA at 8. The 20A and 24A caps achieved the fuel The 18A cap retained adequate canopy cover but failed to achieve the Project’s fuel reduction goals. Id. The USFS then conducted a second round of modeling with the 12 same diameter caps but with a different prescription that 13 constrained canopy cover reduction to the desired minimum level 14 (18B, 20B, and 24B). 15 precluded the desired fire hazard reduction goals. 16 Id. For each alternative, the constraint Id. The USFS explained that because the Proposed Action does not 17 have a diameter limit, trees can be thinned evenly across all 18 size class clumps: “the ability to remove some larger trees 19 allows the Proposed Action to achieve reduction of canopy fuel 20 hazard in the hard-to-replace larger size class clumps, and to 21 retain canopy cover in the smaller size class clumps, both of 22 which comprise the foraging habitat within the commercial thin 23 units.” 24 20A and 24A would produce enough timber to offer economically 25 viable sales. Id. at 9. The agency also noted that only alternatives 26 Ultimately, because none of the alternatives were consistent 27 with the primary purposes of fuel hazard reduction and protection 28 of mid- and late-successional habitat, the USFS concluded that it 10 1 would not consider the alternatives in further detail. 2 10–11. 3 alternatives produced the level of timber achieved in the 4 Proposed Action. 5 Id. at Additionally, the agency noted that none of these 3. Plaintiff’s Objections 6 a. The Decision Was Biased Because of USFS’s Financial Interest In Harvesting Timber 7 8 9 Plaintiff argues the “biased adjudicator” problem is in full force here. Opp’n at 5. It latches onto a statement—which seems 10 to be one that describes the USFS generally rather than what 11 specifically occurred in this project—included in the Response to 12 its objections: “The Forest recognizes that their lands can’t be 13 protected, as prescribed, if the timber offered is not sold or is 14 at a cost via service contract.” 15 162-3, at 12). 16 which the USFS considers the economic viability of the project 17 with the proposed diameter caps: “Such uneconomic volumes could 18 still be produced, by implementing the commercial thinning 19 through a service contract, but this would require substantial 20 Forest Service funding.” 21 notes several other statements in the record indicating that the 22 USFS’s interest in funding influenced its judgment. 23 Id. (citing Obj. Resp., ECF No. It refers the Court to a line in Appendix 1, in Id. (citing App. 1 at 3). Plaintiff But, Plaintiffs have failed to cite any authority indicating 24 that the agency’s financial interest in a particular outcome 25 renders its decision invalid. 26 in the Earth Island Institute cases do not make new law, nor do 27 they provide any guidance to the Court as to how it should 28 account for the agency’s financial interests in the project. Judge Noonan’s concurring comments 11 See 1 Earth Island Institute v. U.S. Forest Service, 442 F.3d 1147 (9th 2 Cir. 2006) (Noonan, J. concurring); Earth Island Institute v. 3 U.S. Forest Service, 351 F.3d 1291 (9th Cir. 2003) (Noonan, J. 4 concurring). 5 though not directly on point—indicating that the timber 6 production is a permissible consideration in national forest 7 management. 8 maintaining, and revising plans for units of the National Forest 9 System pursuant to this section, the Secretary shall assure that In contrast, the USFS cites several authorities— Reply at 3; 16 U.S.C. § 1604(e)(1) (“In developing, 10 such plans provide for multiple use and sustained yield of the 11 products and services obtained therefrom . . . and, in 12 particular, include coordination of outdoor recreation, range, 13 timber, watershed, wildlife and fish, and wilderness[.]”). 14 The USFS’s supplemental analysis is candid in its 15 consideration of economic factors in implementing the project. 16 But, this concern was not the Project’s primary purpose and it 17 does not appear that financial incentives drove the entire 18 project. 19 advantages of a project is an improper consideration. 20 Plaintiff has not shown that the economic viability or The USFS also argues that Plaintiff waived this argument by 21 failing to address it in its Complaint or the Summary Judgment 22 briefing. 23 objection in its objections to the SEA, as required for 24 exhaustion purposes. 25 argument appears to be new, though Plaintiff did express concerns 26 related to the economic viability of the project in its 27 Objections. 28 appears geared toward challenging the “purpose and need” of the Further, Plaintiff did not raise this specific See Pl. Obj. It is true that this specific And, as the USFS notes in footnote 3, this argument 12 1 project, which the Court already upheld at the summary judgment 2 stage. 3 4 The Court finds that this biased adjudicator argument fails substantively and appears to be procedurally untimely as well. 5 b. It Was Arbitrary And Capricious For The USFS To Base Its Alternatives Analysis Upon Fire Conditions Likely To Occur During 97th Percentile Weather Conditions 6 7 8 9 Plaintiff contends that the USFS used inflated fire weather conditions—97th percentile—in the alternatives analysis to 10 justify its decision to incorporate large old tree component into 11 the timber sales specifications. 12 this number is inconsistent with the modeling used to prepare the 13 Mendocino National Forest Late Successional Reserve Assessment 14 (“LSRA”), which was at 90th percentile weather conditions. 15 at 7. 16 Opp’n at 8. It points out that Id. The USFS responds to this objection, Obj. Resp. at 8–10, by 17 noting that the choice of 97th percentile weather as the 18 threshold for modeling was relied upon in the Environmental 19 Assessment, Fuels Report, and throughout the project. 20 explains that the 97th percentile weather was selected to meet 21 the purpose and need for reductions in potential fire behavior 22 across as broad a spectrum of possible weather scenarios. 23 It Id. The 97th percentile weather conditions measurement was in 24 fact used throughout the Smokey Project, see Environmental 25 Assessment at 5 (citing the Fuels Report) (AR000025), and 26 Plaintiff did not raise this issue in the merits briefing last 27 year. 28 exceeds the scope of the Court’s Order. Reply at 7. Plaintiff’s objection is a new issue and 13 1 The USFS also provided an adequate explanation for its 2 decision to use the 97th percentile. Not only did it address the 3 issue in its Objection Responses, it explains the selection of 4 the 97th percentile in Appendix 1 – Evaluation of Diameter Limit 5 Alternatives under the subheading “Methods of Analysis.” 6 App. 1 at 4. 7 burned by wildfires is burned by a relatively small number of 8 large wildfires burning under extreme conditions.” 9 It addressed the shift from the 90th percentile to the 97th See The agency explains that “the vast majority of area Id. at 4. 10 percentile: the higher percentile accounts for climate change and 11 the 97th percentile conditions were judged to approximate 90th 12 percentile conditions over the life of the Project (20 years). 13 Id. at 5. 14 the USFS to use a different percentile. 15 pointed to a rule requiring projects to utilize the 90th 16 percentile weather conditions that was used in the LSRA. 17 court finds that it was not arbitrary and capricious for the USFS 18 to use the 97th percentile in the alternatives analysis. 19 Plaintiff has failed to cite any authority requiring Nor has Plaintiff The c. The Analysis Is Flawed Because It Does Not Explain Why The Only Analyzed Action Alternative Calls For Tree Cutting Far More Extensive Than Necessary 20 21 22 In its objections to the Supplemental Analysis, Plaintiff 23 contends that the project is generating more timber than 24 necessary for minimum economic viability. 25 USFS’s decision to only analyze an alternative that yielded “7 26 million board feet—almost 50% more than the high end of the 27 ‘viable range’—is therefore arbitrary and capricious.” 28 11. It argues that the Opp’n at Plaintiff argues that the USFS’s explanation for choosing a 14 1 project with such a high yield is lacking. 2 Id. First, Plaintiff has not identified a previously proposed, 3 reasonable alternative that both meets the purpose and need of 4 the project and decreases the number of board feet produced. 5 USFS provided a reasoned explanation for ruling out the diameter 6 caps. 7 than the USFS has acknowledged is necessary for the Project to be 8 economically viable. 9 specifically explain why the Project goes beyond that amount. The It does appear that the project produces more board feet See Obj. Resp. at 12. The USFS does not 10 But it does explain how the Smokey Project’s design and the 11 treatments to be performed meet the purpose and need of the 12 project. 13 Plaintiff has not directed the Court to any statute or regulation 14 requiring the USFS to explain itself in the negative (i.e. why it 15 chose not to do something) except as necessary to explain why it 16 did not consider alternatives, which it did. 17 approach would require an agency to explain why it did not 18 consider any infinite number of possible project designs. 19 does not accord with the HFRA, which only requires the USFS to 20 consider an additional alternative if it is proposed during 21 scoping or the collaborative process under subsection (f) and 22 meets the purpose and need of the project. 23 It explains why the diameter cap alternatives do not. Plaintiff’s This 16 U.S.C. § 6514(c). Second, this challenge goes beyond the scope of the Court’s 24 order, which required the USFS to consider the diameter caps 25 suggested during the scoping process. 26 fails both procedurally and on the merits. 27 /// 28 /// 15 As such, this argument 1 d. The Only Action Alternative Assessed By The USFS Will Result In A Significant Amount Of Tree Mortality 2 Finally, Plaintiff claims that the alternatives analysis is 3 4 flawed because the only action considered is inconsistent with 5 the underlying management objective for the Smokey Project, which 6 is to assure that tree mortality not exceed a maximum of 25 7 percent. 8 Again, this challenge goes beyond the scope of the Court’s order, 9 which required the USFS to consider the diameter caps suggested Opp’n at 12 (citing Environmental Assessment at 4). 10 during the scoping process. Further, Plaintiff did not raise 11 this issue in its original Motion for Summary Judgment. 12 ECF No. 103. 13 litigate new issues. See MSJ, Plaintiff is attempting to use this opportunity to Even were the Court to countenance this argument, it lacks 14 15 merit. The USFS explains that the 25 percent mortality rate 16 discussed in the Late Successional Reserve Assessment (“LSRA”) 17 refers to potential mortality from future wildfire, not mortality 18 due to fuel treatment removal. 19 10. 20 consistent with the quoted portion of the LSRA. 21 (LSRA at 35). 22 titled “Risk to LSR Habitat From Future Large-Scale 23 Disturbances,” which discusses the potential risk that wildfires 24 pose to LSR habitat. 25 section discusses predicted mortality rates for different areas 26 of the forest and habitat classes should fires occur. 27 following portion of this section, which is quoted in the Smokey 28 Project Environmental Assessment, does appear to refer to See Opp’n at 12; Obj. Resp. at Plaintiff describes this explanation as absurd, but it is See AR 5298–99 The quoted rate is included in a sub-section AR 5295–96 (LSRA at 31–32). 16 The entire The 1 mortality caused by fires and not by fuel reduction treatments: 2 “Fuel management strategies and techniques that reduce the 3 intensity of wildfires, limit flame lengths to less than four 4 feet, and reduce the likelihood of crown fires would reduce tree 5 mortality to less than 25% and maintain late successional 6 habitat.” 7 deference in interpreting its own regulations unless that 8 interpretation is plainly inconsistent with the regulation at 9 issue. AR 5299 (LSRA at 35). The USFS is entitled to Native Ecosystems Council v. U.S. Forest Service, 418 10 F.3d 953, 960 (9th Cir. 2005). Such deference is warranted here. 11 Plaintiff has also not identified any USFS document or rule that 12 restricts overall tree mortality to 25 percent. 13 reasons, Plaintiff’s argument fails. 14 D. 15 Past Monitoring 1. 16 For all these Prior Ruling In its merits order, the Court expressed concern that the 17 USFS admitted it had not completed the monitoring for other 18 projects in the Mendocino National Forest as required in the 19 Enforceable Terms and Conditions found in prior Biological 20 Opinions. 21 this issue rendered the decision not to complete an EIS arbitrary 22 and capricious, it found the lack of explanation for this 23 deficiency meant the agency failed to take a “hard look” at the 24 impacts of the Smokey Project. 25 SJ Order at 19–20. 2. 26 Though the Court did not find that Id. at 40–41. Supplemental Analysis The USFS claims that the Mendocino National Forest was and 27 is in full compliance with its ESA monitoring obligation. 28 16. SEA at It clarified that the monitoring for several projects had 17 1 not been done because the projects had either been cancelled or 2 not yet been implemented. 3 projects that have gone through formal consultation for the NSO— 4 has been implemented and requires annual reporting: the Westshore 5 project. 6 Westshore project and the information gathered does not affect 7 the Smokey Project’s expected impacts or significantly modify the 8 environmental baseline. 9 3. 10 Id. Only one project—of the 15 The USFS has done the necessary monitoring for the Id. at 16–19. Plaintiff’s Objections Plaintiff does not dispute the fact that the USFS has 11 complied with the monitoring requirements imposed following 12 formal consultation with the FWS. 13 14 15 16 17 Instead they argue: Conservation Congress has demonstrated that the USFS has monitoring obligations arising from other sources. For example, Conservation Congress has explained that the USFS has mandatory monitoring obligations imposed by the USFS’s Mendocino National Forest Land and Resource Management Plan and the USFWS’s “2011 Northern Spotted Owl Survey Protocol,” and that the USFS has failed to comply with these monitoring obligations. 18 Opp’n at 13. Plaintiff cites back to declarations it submitted 19 in the remedy briefing indicating that the USFS has failed to 20 comply with such requirements. 21 In the summary judgment briefing, Plaintiff took issue with 22 the general lack of monitoring and the USFS’s failure to perform 23 the monitoring required by FWS following formal consultation on 24 previous projects. 25 No. 114. 26 the USFS failed to account for its admitted failure to do 27 monitoring required in other Biological Opinions. 28 addresses the Court’s concern. See generally MSJ, ECF No. 103; Reply, ECF The Court only found a violation due to the fact that The SEA Plaintiff has not provided any 18 1 reason for the Court to question the USFS’s representations 2 concerning its monitoring of other projects. 3 that there is any project the USFS failed to account for in the 4 SEA or that any of the information is inaccurate. 5 therefore finds that the USFS has cured the identified monitoring 6 deficiencies. 7 It has not argued The Court The challenges Plaintiff raises also exceed the scope of the 8 Court’s order. During the remedy briefing stage, Plaintiff 9 attempted to introduce declarations and evidence showing that the 10 USFS has failed to comply with the Survey Protocols and the 11 monitoring required for the Smokey Project. 12 refers the Court to this evidence as well as evidence concerning 13 surveys in the year 2017. 14 Ex. 2). 15 Court to consider such evidence at this stage of the proceedings. 16 It is a new argument; Plaintiff contends that because the USFS 17 has failed to perform protocol-level surveys in the Smokey 18 Project area, the Court should find that the agency failed to 19 take a “hard look” at the Project’s impacts. 20 has little to do with the Court’s prior order and seeks to 21 litigate new violations. 22 Plaintiff again Opp’n at 16 (citing Sugarman Decl., But Plaintiff has not provided a legal basis for the The new argument Plaintiff also argues that the USFS knows about a nesting 23 pair of northern spotted owls in a stand occupying stands 24 adjacent to commercial timber units. 25 raised this issue in its Supplemental Claim against the FWS and 26 the Court deferred to the agencies’ interpretation of the 27 available data. 28 here. SJ Order at 48. 19 Opp’n at 14. Plaintiff This issue may not be revisited 1 The USFS argues that Plaintiff should not be allowed to 2 pursue its new claims regarding insufficient monitoring due to 3 the doctrine of primary jurisdiction. 4 prudential one under which courts may, under appropriate 5 circumstances, determine that the initial decision making 6 responsibility should be performed by the agency rather than the 7 courts. 8 Inc., 307 F.3d 775, 780 (9th Cir. 2002). 9 is properly invoked when a claim is cognizable in federal court The doctrine is a Syntek Semiconductor Co., Ltd. v. Microchip Technology “Primary jurisdiction 10 but requires resolution of an issue of first impression, or of a 11 particularly complicated issue that Congress has committed to a 12 regulatory agency.” 13 277 F.3d 1166, 1172 (9th Cir. 2002). 14 exercise its discretion to defer the monitoring claim, to the 15 extent it relies on new 2017 survey data, to the agency. 16 Brown v. MCI WorldCom Network Servs., Inc., The USFS asks the Court to The Court finds the USFS cured the monitoring issue the 17 Court identified in the SJ Order. 18 the agency’s account of its activities for other projects, but 19 instead, has improperly raised issues outside the scope of the 20 Court’s Order. 21 this issue, the Court need not decide the USFS’ primary 22 jurisdiction contention to resolve this issue. 23 24 E. Plaintiff has not contested Because the USFS has satisfied its obligation on LOPs 1. Prior Ruling 25 In the Merits Order, the Court found that the Limited 26 Operation Period protocol was stated inconsistently throughout 27 the record, making it difficult (if not impossible) for one to 28 know how the LOPs operate and determine agency compliance. 20 SJ 1 Order at 41. 2 in the Environmental Assessment and Appendix A, stating that “A 3 limited operating period for northern spotted owls would be 4 applied to all units from February 1 to September 15 unless 5 current protocol-level surveys indicate that they are 6 unnecessary.” 7 did not accord with the LOPs stated in the Biological Assessment 8 and the three Biological Opinions. 9 2. 10 The confusion principally stemmed from statements SJ Order at 39 (emphasis added). This statement Supplemental Analysis The USFS thoroughly discusses and describes the LOPs in the 11 Supplemental Environmental Assessment and in Appendix 3 – Unit- 12 Specific LOP Application and History. 13 characterization of the LOPs in the EA that differs from the LOP 14 general requirements in the 2011 BA and 2012 BO . . . should be 15 disregarded.” 16 EA). 17 (and explaining the basis for) the applicable LOP for every unit 18 in the Smokey Project for the year 2017. 19 20 It clarifies that “any App. 3 at 1 (Section 2.1 Application Error in the The Appendix explains the LOPs and provides a chart showing 3. Id. at 4–12. Plaintiff’s Objections Plaintiff argues that the supplemental analysis did not cure 21 the deficiencies. 22 plainly stated that “an LOP for northern spotted owls would be 23 applied to all units from February 1 to September 15 unless 24 current protocol-level surveys indicate that they are 25 unnecessary.” 26 supplemental documents’ characterization of that statement as an 27 “application error.” 28 It argues that the Environmental Assessment Opp’n at 17. Now, it takes issue with the Plaintiff’s argument fails to account for the fact that the 21 1 USFS could not comply with this Court’s order without providing 2 an explanation for the inconsistent statements in the decision 3 record. 4 and confusing statements and supplementing the record with a 5 thorough explanation that takes precedence over the earlier 6 statements. 7 conflict with earlier documents “this supplemental document shall 8 take precedence over the 2012 EA.”). 9 The USFS solved the problem by retracting the overbroad See SEA at 4 (explaining that where there is Plaintiff has not identified any other issues with the 10 supplemental explanation of the LOPs. 11 disputed any of the information in the LOP chart in Appendix 3. 12 For all these reasons, the Court rejects Plaintiff’s argument. Plaintiff has also not 13 14 IV. CONCLUSION 15 The USFS adequately addressed each of the Court’s concerns. 16 While the result did not change, the agency provided a reasoned, 17 clear, and thorough analysis for its conclusions. 18 of NEPA, ensuring process but not outcomes, have been met through 19 these supplemental efforts. 20 Court grants the Federal Defendants’ and Intervenor’s Motion to 21 Dissolve the Injunction. 22 23 The purposes For all the foregoing reasons, the IT IS SO ORDERED. Dated: March 2, 2018. 24 25 26 27 28 22

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