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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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
and UNITED STATES FISH AND
WILDLIFE SERVICE,

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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,

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Intervenor
Defendant.

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I. INTRODUCTION

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Conservation Congress (“Plaintiff”) sued the United States

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Forest Service (“USFS”) and the United States Fish and Wildlife

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Service (“FWS”) for violations of the National Environmental

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Policy Act (“NEPA”), the Endangered Species Act (“ESA”), the

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National Forest Management Act (“NFMA”), and the Administrative

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Procedure Act (“APA”) related to the Smokey Project (or

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“Project”).

The Smokey Project is a plan to administer fuel and
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vegetative treatments to further habitat and fire management

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goals in the Mendocino National Forest.

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contribute to timber production.

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Company (“Trinity”) intervened in the case; Trinity purchased the

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stewardship contract for the Smokey Project and will be

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harvesting trees ones the Project commences.

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this Court granted Plaintiff summary judgment on two of its

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claims against the USFS, remanded the Project to the agency to

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cure the noted defects, and enjoined tree harvesting of trees

The project will also

The Trinity River Lumber

About a year ago,

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exceeding 20 inches dbh.

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Court to dissolve the injunction (ECF No. 162). 1

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II.

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Now the USFS and Intervenor move the

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

On February 16, 2017, the Court granted Plaintiff’s Motion

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for Summary Judgment on its claims that the USFS failed to take a

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hard look and failed to develop a reasonable range of

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alternatives in analyzing the proposed Smokey Project (the First

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and Fourth Claims).

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Specifically, the Court found that the USFS:

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•

Failed to address reasonable alternatives, specifically

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the suggested diameter caps, SJ Order (ECF No. 121) at

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31–37, 39;

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•

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Stated the Limited Operating Period inconsistently
throughout the record, id. at 39–40; and

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Failed to address how its failure to do the monitoring

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required for other projects impacts the Smokey Project.

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Id. at 40–41.

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A hearing was held on this motion on February 27, 2018.
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The Court also expressed concern that the Environmental

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Assessment contained varying statistics regarding the number of

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acres to be treated that, without much explanation of these

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differences, made the document confusing.

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did not however include this issue as a ground for its decision.

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Id. at 41.

The Court

In all other respects, the Court found in favor of

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Defendants and granted their and Intervenor’s Cross Motions for

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Summary Judgment on the Second, Third, Fifth, Sixth, Seventh,

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Eighth, and Ninth Claims, and the Supplemental Claim.

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The Court requested further briefing on the proper remedy

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and issued a Final Judgment on May 26, 2017 (ECF No. 142).

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Court remanded the Project to the USFS with instructions to

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prepare supplemental NEPA analysis that cures the NEPA violations

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identified in the Court’s Merits Order and complies with the

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applicable statutes.

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that no EIS would be required, it was ordered to circulate the

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analysis and draft revised DN/FONSI to the public.

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Court ordered the USFS to accept objections for a 20-day period

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from eligible parties and complete its supplemental documentation

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and public involvement process no later than December 1, 2017.

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Finally, the Court enjoined Defendants and Intervenor from

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removing any trees with 20 inches dbh or greater.

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retained jurisdiction to dissolve the injunction upon a showing

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that the USFS has complied with this Court’s Order and satisfied

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its obligations under NEPA.

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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

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Environmental Assessment on September 27, 2017.

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Let. at 1.

Mot. at 2; Obj.

Plaintiff submitted objections on October 16 and 17,
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2017. Id.; Pl. Obj.

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Obj. Resp., ECF No. 162-3.

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to Environmental Assessment and an affirmation of its prior

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DN/FONSI (Decision Notice and Finding of No Significant Impact)

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on November 27, 2017.

The USFS responded to those objections.
The USFS then issued its Supplement

SEA; Aff. Dec.

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III. OPINION

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A.

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A district court may relieve a party from a final judgment

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Legal Standards

under Federal Rule of Civil Procedure 60(b).

Rule 60(b)(5)

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allows courts to relieve a party or its legal representative from

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a final judgment, order, or proceeding if the judgment has been

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satisfied, released or discharged.

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or dissolution of an injunction bears the burden of establishing

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that a significant change in facts or law warrants revision or

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dissolution of the injunction.”

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1170 (9th Cir. 2000).

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to the underlying reasons for the injunction.”

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Mortg. Corp., No. C08-969Z, 2008 WL 4741492, at *2 (W.D. Wash.

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Oct. 24, 2008).

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“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

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review of the agency’s action is limited to the scope of the

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prior litigation and the injunction order at issue.

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IV, Inc. v. Federal Transit Administration, No. LA CV13-00378 JAK

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(PLAx), 2016 WL 741685, at *6–7 (C.D. Cal. Feb. 5, 2016) (citing

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Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 162 (2010)).

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It is not an opportunity for a plaintiff to raise issues that

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were not addressed in the summary judgment order.

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claims must be presented through a new action and cannot serve as
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See Today’s

Id.

New

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a basis to deny a request to dissolve the injunction.

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also Orantes-Hernandez v. Gonzales, 504 F. Supp. 2d 825, 844

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(C.D. Cal. 2007) (finding a new due process claim exceeds the

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permissible scope of the court’s inquiry in deciding the

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government’s motion to dissolve the 1988 injunction).

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limitations build upon a principle common to all federal

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litigation, a plaintiff cannot raise claims it failed to put the

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defendant on notice of by its complaint.

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Imports, Inc., 457 F.3d 963, 968 (9th Cir. 2006).

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Id.; see

These

See Pickern v. Pier 1

In addition to these principles, Intervenor argues, citing

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Heartland Regional Medical Center, that the Court need not

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evaluate the merits of the remand decision before dissolving the

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injunction.

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Medical Center v. Leavitt, the D.C. Circuit found that where a

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court remanded a case to an agency due to the agency’s failure to

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consider or respond to reasonable alternatives, the agency

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complied with the judgment by filling the analytical gap and

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incorporating its rationale for rejecting those alternatives into

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the decision documents.

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the Circuit explained, “whether or not the agency’s [post-remand]

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rejection of the alternatives was arbitrary is a determination

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that must be made in [a] separate APA action challenging [the

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agency’s] post-remand decisions.”

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discussion favors a narrow construction of the action required on

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remand, its instructive value in the present case is very limited

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because the Heartland decision involved a plaintiff’s motion to

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enforce a judgment, not a decision whether to dissolve an

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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
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cited above.

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“NEPA imposes only procedural requirements to ensure that

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the agency, in reaching its decision, will have available, and

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will carefully consider, detailed information concerning

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significant environmental impacts.”

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23 (2008) (internal quotations omitted).

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guarantees a particular procedure, not a particular result.”

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Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 737 (1998).

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B.

Winter v. NRDC, 555 U.S. 7,
“NEPA . . . simply

Argument Summary

The USFS seeks dissolution of the injunction.

ECF No. 162.

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It argues, and provides supporting documentation to show, that it

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has addressed the Court’s three main concerns in its supplemental

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analysis.

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Assessment (“SEA”) clarifies the Project’s acreage figures and

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explains the confusion from earlier iterations of this data.

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Intervenor joined in this motion, adding some additional

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arguments and explaining that it has not commenced cutting

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because the Project was not economically feasible with the

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Court’s diameter cap.

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Additionally, the Supplemental Environmental

Joinder at 2.

Plaintiff opposes the motion.

ECF No. 166.

First, it

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argues that the failure to conduct a detailed analysis of a

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single “action alternative” to the Smokey Project is a violation

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of NEPA’s alternative analysis requirement.

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contests the USFS’s alternatives analysis as (1) skewed toward

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selecting an alternative with intensive cutting, (2) based upon

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fire conditions likely to occur during 97th percentile weather

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conditions (which it claims is arbitrary and capricious),

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(3) flawed by its failure to explain why the only analyzed action
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Opp’n at 2.

It

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alternative calls for tree cutting far more extensive than

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necessary, and (4) contrary to underlying management objective of

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assuring that tree mortality not exceed 25 percent.

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Next, Plaintiff argues that USFS has failed to meet its

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monitoring obligations from sources like the Mendocino National

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Forest Land and Resource Management Plan and the USFWS’s “2011

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Northern Spotted Owl Survey Protocol.”

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Plaintiff argues that the supplemental analysis failed to clarify

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the LOPs.

Id. at 13.

Id. at 4–12.

Finally,

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In Reply, the USFS argues that Plaintiff’s Opposition seeks

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to expand the scope of this litigation and raises issues that do

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not go to the NEPA deficiencies the Court identified in its

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earlier orders.

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criticisms are procedurally improper and that it fully complied

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with the Court’s Order.

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Plaintiff has not shown any deficiencies in the analysis on

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remand.

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persuasively, that “the deficient alternatives analysis was the

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foundation of the Court’s decision to issue an injunction.”

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Reply at 2; J. Order at 3.

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deciding whether or not to dissolve the injunction should be the

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supplemental alternatives analysis.

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Id.

C.

It argues that Plaintiff’s

Similarly, Intervenor contends that

Intervenor Reply at 1.

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Fed. Reply at 1.

Intervenor also argues,

Therefore, the central question in

Alternatives Analysis
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MSJ Ruling

The purpose and need of a project defines the scope of the

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alternatives analysis and an agency need only evaluate

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alternatives that are reasonably related to the project’s

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purposes.

League of Wilderness Defenders-Blue Mountains
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Biodiversity Project v. U.S. Forest Service, 689 F.3d 1060, 1069

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(9th Cir. 2012).

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to define the purpose and need of a project.

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Dist. v. U.S. Dep’t of the Interior, 376 F.3d 853, 866 (9th Cir.

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2004).

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“purpose and need” of the Project.

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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

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alternatives in both EISs and EAs and must give full and

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meaningful consideration to all reasonable alternatives.”

Te-

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Moak Tribe of West. Shoshone of Nev. v. U.S. Dep’t of Interior,

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608 F.3d 592, 601–02 (9th Cir. 2010).

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but unexamined alternative renders an environmental impact

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statement inadequate.”

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F.A.A., 161 F.3d 569, 575 (9th Cir. 1998) (internal quotation

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marks and citation omitted) (applying this rule in the EA

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context).

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Restoration Act (“HFRA”)—like this one—need only consider three

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alternatives: the proposed agency action; the alternative of no

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action; and an additional action alternative, if the additional

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alternative—(i) is proposed during scoping or the collaborative

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process under subsection (f); and (ii) meets the purpose and need

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of the project, in accordance with regulations promulgated by the

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Council on Environmental Quality.

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“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

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consider or acknowledge an alternative with a larger diameter cap

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was arbitrary and capricious, in light of the numerous diameter

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cap suggestions made during the collaborative process leading up

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to the Project.
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2.

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USFS Supplemental Analysis

The USFS cured this deficiency in its Supplement to

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Environmental Assessment (“SEA”), Section 5, Issue 1 – Range of

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Reasonable Alternatives.

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two versions each of an 18 inches, 20 inches, and 24 inches dbh

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limit.

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inconsistent with key elements of the Smokey Project’s purpose

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and need, and would fail to achieve the agency’s policy

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objectives for the project.”

The agency considered 6 alternatives,

It concluded that “all six alternatives would be

SEA at 5.

It explains that the

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alternatives were considered with two primary purposes in mind:

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(1) the need to retain NSO foraging habitat, and (2) the need to

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thin overstory trees.

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commercial thin units are the only treatments to contribute to

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timber production, a secondary purpose and need of the Smokey

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Project.

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The analysis also notes that the

Id. at 5.

The agency concluded that the diameter limit alternatives

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would fail to sufficiently protect NSO foraging habitat and would

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significantly reduce the amount of timber offered for sale.

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at 7.

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determined by a two part test: “First, the alternative must not

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cause a direct loss of NSO foraging habitat due to excessive

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canopy reduction.

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hazard enough to prevent loss of NSO foraging habitat to

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wildfire. Both tests must be passed for an alternative to be

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consistent with the project’s purpose and need.”

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first criteria, the USFS required that an alternative not reduce

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canopy cover below 40%; anything below that point would not

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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

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Id.

For the

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habitat.

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fire basal area mortality to 25 percent or less, as determined

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using the Forest Vegetation Simulator (“FVS”) model with 97th

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percentile weather conditions.

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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,

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20A, and 24A).

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reduction goals but resulted in significant reduction in canopy

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cover because of the clumpy size class distribution in the

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stands.

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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

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same diameter caps but with a different prescription that

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constrained canopy cover reduction to the desired minimum level

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(18B, 20B, and 24B).

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precluded the desired fire hazard reduction goals.

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Id.

For each alternative, the constraint
Id.

The USFS explained that because the Proposed Action does not

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have a diameter limit, trees can be thinned evenly across all

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size class clumps: “the ability to remove some larger trees

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allows the Proposed Action to achieve reduction of canopy fuel

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hazard in the hard-to-replace larger size class clumps, and to

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retain canopy cover in the smaller size class clumps, both of

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which comprise the foraging habitat within the commercial thin

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units.”

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20A and 24A would produce enough timber to offer economically

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viable sales.

Id. at 9.

The agency also noted that only alternatives

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Ultimately, because none of the alternatives were consistent

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with the primary purposes of fuel hazard reduction and protection

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of mid- and late-successional habitat, the USFS concluded that it
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would not consider the alternatives in further detail.

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10–11.

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alternatives produced the level of timber achieved in the

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Proposed Action.

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Id. at

Additionally, the agency noted that none of these

3.

Plaintiff’s Objections

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a. The Decision Was Biased Because of USFS’s
Financial Interest In Harvesting Timber

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Plaintiff argues the “biased adjudicator” problem is in full
force here.

Opp’n at 5.

It latches onto a statement—which seems

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to be one that describes the USFS generally rather than what

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specifically occurred in this project—included in the Response to

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its objections: “The Forest recognizes that their lands can’t be

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protected, as prescribed, if the timber offered is not sold or is

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at a cost via service contract.”

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162-3, at 12).

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which the USFS considers the economic viability of the project

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with the proposed diameter caps: “Such uneconomic volumes could

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still be produced, by implementing the commercial thinning

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through a service contract, but this would require substantial

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Forest Service funding.”

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notes several other statements in the record indicating that the

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USFS’s interest in funding influenced its judgment.

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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

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that the agency’s financial interest in a particular outcome

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renders its decision invalid.

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in the Earth Island Institute cases do not make new law, nor do

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they provide any guidance to the Court as to how it should

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account for the agency’s financial interests in the project.

Judge Noonan’s concurring comments

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See

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Earth Island Institute v. U.S. Forest Service, 442 F.3d 1147 (9th

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Cir. 2006) (Noonan, J. concurring); Earth Island Institute v.

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U.S. Forest Service, 351 F.3d 1291 (9th Cir. 2003) (Noonan, J.

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concurring).

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though not directly on point—indicating that the timber

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production is a permissible consideration in national forest

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management.

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maintaining, and revising plans for units of the National Forest

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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,

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such plans provide for multiple use and sustained yield of the

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products and services obtained therefrom . . . and, in

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particular, include coordination of outdoor recreation, range,

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timber, watershed, wildlife and fish, and wilderness[.]”).

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The USFS’s supplemental analysis is candid in its

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consideration of economic factors in implementing the project.

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But, this concern was not the Project’s primary purpose and it

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does not appear that financial incentives drove the entire

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project.

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advantages of a project is an improper consideration.

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Plaintiff has not shown that the economic viability or

The USFS also argues that Plaintiff waived this argument by

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failing to address it in its Complaint or the Summary Judgment

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briefing.

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objection in its objections to the SEA, as required for

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exhaustion purposes.

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argument appears to be new, though Plaintiff did express concerns

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related to the economic viability of the project in its

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Objections.

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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

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project, which the Court already upheld at the summary judgment

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stage.

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4

The Court finds that this biased adjudicator argument fails
substantively and appears to be procedurally untimely as well.

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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

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Plaintiff contends that the USFS used inflated fire weather
conditions—97th percentile—in the alternatives analysis to

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justify its decision to incorporate large old tree component into

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the timber sales specifications.

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this number is inconsistent with the modeling used to prepare the

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Mendocino National Forest Late Successional Reserve Assessment

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(“LSRA”), which was at 90th percentile weather conditions.

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at 7.

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Opp’n at 8.

It points out that

Id.

The USFS responds to this objection, Obj. Resp. at 8–10, by

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noting that the choice of 97th percentile weather as the

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threshold for modeling was relied upon in the Environmental

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Assessment, Fuels Report, and throughout the project.

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explains that the 97th percentile weather was selected to meet

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the purpose and need for reductions in potential fire behavior

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across as broad a spectrum of possible weather scenarios.

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It

Id.

The 97th percentile weather conditions measurement was in

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fact used throughout the Smokey Project, see Environmental

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Assessment at 5 (citing the Fuels Report) (AR000025), and

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Plaintiff did not raise this issue in the merits briefing last

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year.

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exceeds the scope of the Court’s Order.

Reply at 7.

Plaintiff’s objection is a new issue and

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The USFS also provided an adequate explanation for its

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decision to use the 97th percentile.

Not only did it address the

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issue in its Objection Responses, it explains the selection of

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the 97th percentile in Appendix 1 – Evaluation of Diameter Limit

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Alternatives under the subheading “Methods of Analysis.”

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App. 1 at 4.

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burned by wildfires is burned by a relatively small number of

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large wildfires burning under extreme conditions.”

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It addressed the shift from the 90th percentile to the 97th

See

The agency explains that “the vast majority of area

Id.

at 4.

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percentile: the higher percentile accounts for climate change and

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the 97th percentile conditions were judged to approximate 90th

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percentile conditions over the life of the Project (20 years).

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Id. at 5.

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the USFS to use a different percentile.

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pointed to a rule requiring projects to utilize the 90th

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percentile weather conditions that was used in the LSRA.

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court finds that it was not arbitrary and capricious for the USFS

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to use the 97th percentile in the alternatives analysis.

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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

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22

In its objections to the Supplemental Analysis, Plaintiff

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contends that the project is generating more timber than

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necessary for minimum economic viability.

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USFS’s decision to only analyze an alternative that yielded “7

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million board feet—almost 50% more than the high end of the

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‘viable range’—is therefore arbitrary and capricious.”

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11.

It argues that the

Opp’n at

Plaintiff argues that the USFS’s explanation for choosing a
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project with such a high yield is lacking.

2

Id.

First, Plaintiff has not identified a previously proposed,

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reasonable alternative that both meets the purpose and need of

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the project and decreases the number of board feet produced.

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USFS provided a reasoned explanation for ruling out the diameter

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caps.

7

than the USFS has acknowledged is necessary for the Project to be

8

economically viable.

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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

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But it does explain how the Smokey Project’s design and the

11

treatments to be performed meet the purpose and need of the

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project.

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Plaintiff has not directed the Court to any statute or regulation

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requiring the USFS to explain itself in the negative (i.e. why it

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chose not to do something) except as necessary to explain why it

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did not consider alternatives, which it did.

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approach would require an agency to explain why it did not

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consider any infinite number of possible project designs.

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does not accord with the HFRA, which only requires the USFS to

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consider an additional alternative if it is proposed during

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scoping or the collaborative process under subsection (f) and

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meets the purpose and need of the project.

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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

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order, which required the USFS to consider the diameter caps

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suggested during the scoping process.

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fails both procedurally and on the merits.

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///

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///
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As such, this argument

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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

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4

flawed because the only action considered is inconsistent with

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the underlying management objective for the Smokey Project, which

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is to assure that tree mortality not exceed a maximum of 25

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percent.

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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).

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during the scoping process.

Further, Plaintiff did not raise

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this issue in its original Motion for Summary Judgment.

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ECF No. 103.

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litigate new issues.

See MSJ,

Plaintiff is attempting to use this opportunity to

Even were the Court to countenance this argument, it lacks

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merit.

The USFS explains that the 25 percent mortality rate

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discussed in the Late Successional Reserve Assessment (“LSRA”)

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refers to potential mortality from future wildfire, not mortality

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due to fuel treatment removal.

19

10.

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consistent with the quoted portion of the LSRA.

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(LSRA at 35).

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titled “Risk to LSR Habitat From Future Large-Scale

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Disturbances,” which discusses the potential risk that wildfires

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pose to LSR habitat.

25

section discusses predicted mortality rates for different areas

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of the forest and habitat classes should fires occur.

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following portion of this section, which is quoted in the Smokey

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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).

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The entire

The

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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.

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25
26
27
28
22