Conservation Congress v. United States Forest Service

Filing 36

ORDER signed by Judge Garland E. Burrell, Jr on 3/20/2015 GRANTING Defendant's 13 Motion for Summary Judgment and DENYING 14 & 20 Plaintiff's Motions for Summary Judgment. CASE CLOSED. (Donati, J)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 CONSERVATION CONGRESS, a nonprofit organization, Plaintiff, 13 14 15 No. 2:14-CV-02228-GEB-AC ORDER GRANTING DEFENDANT’S SUMMARY JUDGMENT MOTION AND DENYING PLAINTIFF’S SUMMARY JUDGMENT MOTION v. UNITED STATES FOREST SERVICE, Defendant. 16 17 18 Plaintiff Conservation Congress and Defendant United 19 States Forest Service (“Forest Service”) each move for summary 20 judgment on all claims in Plaintiff‟s Complaint. The County of 21 Siskiyou filed an amicus curiae brief in support of the Forest 22 Service‟s motion. 23 Plaintiff alleges in its Complaint that the Forest 24 Service‟s 25 (“EA”) and Finding of No Significant Impact (“FONSI”) for the 26 Porcupine Vegetation and Road Management Project (“the Project”) 27 violated the National Environmental Policy Act (“NEPA”) and the decision authorizing 28 1 the Environmental Assessment 1 National 2 identified the purposes of the Project as (1) improving forest 3 health by thinning trees, thereby reducing fuels that pose a risk 4 of igniting a catastrophic fire in the Shasta-Trinity National 5 Forest (“the Forest”), (2) maintaining a fuel break, and (3) 6 restoring 7 Record (“PAR”) 1, 4, 370, ECF No. 11.) “The project area is 8 located near Porcupine Butte approximately 20 miles northeast of 9 McCloud,” California. (PAR 1.) Forest meadow Management and 10 Act aspen (“NFMA”). habitat. The (Project Forest Service Administrative I. LEGAL STANDARD 11 “Agency decisions that allegedly violate . . . NEPA and 12 NFMA are reviewed under the Administrative Procedure Act („APA‟), 13 and may be set aside only if they are „arbitrary, capricious, an 14 abuse of discretion, or otherwise not in accordance with the 15 law.‟” Or. Natural Res. Council Fund v. Goodman, 505 F.3d 884, 16 889 (9th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A)). Agency action 17 is arbitrary or capricious if it fails to “examine the relevant 18 data and articulate a satisfactory explanation for [the] action 19 including a rational connection between the facts found and the 20 choice made.” Motor Vehicle Mfrs. Ass‟n of U.S., Inc. v. State 21 Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983). Judicial 22 “[r]eview under this standard is to be „searching and careful,‟ 23 but 24 judgment for that of the agency. This is especially appropriate 25 where . . . the challenged decision implicates substantial agency 26 expertise.” Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 27 (9th Cir. 1993). 28 /// remains „narrow,‟ and a court 2 is not to substitute its 1 A of party seeking 4 (1986). 5 nonmoving party must set forth, by affidavit or as otherwise 6 provided in Fed. Rule Civ. Proc. (“Rule”) 56, „specific facts 7 showing that there is a genuine issue for trial.‟” T.W. Elec. 8 Serv., Inc. v. Pac. Elec. Contractors Ass‟n, 809 F.2d 626, 630 9 (9th Cir. 1987) (quoting former Rule 56(e)). If the movant v. satisfies Catrett, its a genuine initial material Corp. of the 3 Celotex absence bears burden fact. the judgment 2 10 demonstrating summary 477 “initial U.S. issue of 317, 323 burden,” “the 14 Because a district court has no independent duty “to scour the record in search of a genuine issue of triable fact,” and may “rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment,” . . . the district court . . . [is] under no obligation to undertake a cumbersome review of the record on the [nonmoving party‟s] behalf. 15 Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 16 2010) (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 17 1996)). 11 12 13 18 II. REQUEST TO SUPPLEMENT THE ADMINISTRATIVE RECORD 19 Plaintiff seeks in its reply brief to supplement the 20 Project Administrative Record (“PAR”) by having judicial notice 21 taken 22 Reply Supp. Summ. J. (“Pl. Reply”) 2 n.1, ECF No. 31.) However, 23 the district court need not consider a request made for the first 24 time in a reply brief. See Zamani v. Carnes, 491 F.3d 990, 997 25 (9th Cir. 2007). of the Forest Service‟s Annual Progress Report. (Pl.‟s 26 “Generally, judicial review of agency action is limited 27 to review of the administrative record.” Animal Def. Council v. 28 Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988). The administrative 3 1 2 3 4 5 6 7 8 9 10 11 12 record may be supplemented only: (1) if necessary to determine “whether the agency has considered all relevant factors and has explained its decision,” (2) “when the agency has relied on documents not in the record,‟ [] (3) “when supplementing the record is necessary to explain technical terms of complex subject matter,” . . . . [or] [4] “when plaintiffs make a showing of agency bad faith.” S.W. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996) (quoting Inland Empire Pub. Lands Council 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Glickman, 88 F.3d 697, 703-04 (9th Cir. 1996)). Plaintiff‟s request is untimely and does not address the relevant legal standard. Therefore, Plaintiff‟s request to supplement the administrative record is denied. III. DISCUSSION 13 14 v. Plaintiff Service violated alleges NEPA by in its (1) Complaint conducting that an the Forest arbitrary and capricious cumulative effects analysis on the northern spotted owl, (2) failing to consider a reasonable range of alternatives to the Project, (3) failing to take a “hard look” at the environmental impacts of the Project, and (4) failing to prepare an Environmental Impact Statement (“EIS”); and that the Forest Service violated the NFMA by failing to comply with the Forest Plan‟s snag retention standard. A. Cumulative Impacts of Future Projects Plaintiff alleges in its Complaint that the Forest Service used an inappropriately narrow geographic boundary for its cumulative impacts analysis to assess the Project‟s impact on the northern spotted owl. (Compl. ¶¶ 46-47.) Plaintiff argues the narrowness of this analysis fails to comply with the Council on 4 1 Environmental Quality (“CEQ”) guidelines that require analyzing 2 the Project‟s effects using the largest area occupied by the 3 owls, which in this case is the owl‟s natal dispersal distance of 4 10 to 15 miles, and that the Forest Service abused its discretion 5 when only analyzing the Project‟s impact using the owls 1.3 mile 6 median home range. (Pl.‟s Am. Mot. Summ. J. (“Pl. Mot.”) 12:23- 7 13:9; 13:15-25; 14:24-26, ECF No. 20.) 8 NEPA requires that an agency‟s assessment of the 9 environmental impacts of a proposed Project include an analysis 10 of the action‟s cumulative impact. Ctr. for Envtl. Law & Policy 11 v. U.S. Bureau of Reclamation, 655 F.3d 1000, 1007 (9th Cir. 12 2011). 13 impact as “the impact on the environment which results from the 14 incremental 15 present, 16 Cumulative 17 collectively significant actions taking place over a period of 18 time.” “[S]ometimes the total impact from a set of [projects]... 19 may be greater than the sum of the parts.” Goodman, 505 F.3d at 20 893. The CEQ publishes guidelines instructing federal agencies 21 how to define the geographic boundaries of a cumulative effects 22 analysis; the guidelines explain: “[a]nalyzing cumulative effects 23 . . . requires the analyst to expand the geographic boundaries 24 [of the analysis] . . . to encompass additional effects on the 25 resources, ecosystems, and human communities of concern” beyond 26 the Project area. (Malone Decl. Ex. A, p. 21, ECF No. 16.) “CEQ‟s 27 interpretation of NEPA is entitled to substantial deference.” 28 Andrus v. Sierra Club, 442 U.S. 347, 358 (1979). NEPA regulation impact and of 40 the reasonably impacts can C.F.R. § action when foreseeable result 5 1508.7 from defines added future to other actions individually cumulative . past, . minor . . but The portion of 1 the guidelines relevant to Plaintiff‟s claim states: “[f]or a 2 proposed action . . . the analysts should . . . [d]etermine the 3 geographic areas occupied by [the northern spotted owl] . . . . 4 [i]n most cases, the largest of the[] areas [occupied by the owl] 5 will 6 effects.”(Malone Decl. Ex. A, p. 21, 24)(emphasis added.) 7 be the The appropriate Forest area for Service‟s the analysis cumulative of cumulative effects analysis 8 “includes the effects from habitat modification within an owl‟s 9 home range, which is an estimated 1.3-mile radius around an 10 activity center (e.g., nest site) or approximately 3,400 acres.” 11 (PAR 1291)(emphasis added.) 12 The Forest Service explains its analysis is 13 “scientifically valid” and consistent with the CEQ guidelines 14 since the owl‟s natal dispersal distance does not represent the 15 “geographic area [they] occup[y]” but instead “represents the 16 transient/movement 17 establishing new permanent territory.” (Fed. Def.‟s Mem. Opp‟n 18 Pl.‟s Mot. Summ. J. (“Def. Opp‟n”) 2:2-4; 5:4-15, ECF No. 24.) 19 20 21 22 23 24 25 26 27 28 Further, phase the of young Forest owls . Service . . en states administrative record, in relevant part: The 1.3-mile bounding on the assessment area . . . allows for analysis of . . . adjacent territories, is an accepted range by the [Fish and Wildlife Service] for completing [northern spotted owl] effects analysis and includes managed private timberlands that may influence [northern spotted owl] habitat use within the project assessment area. The Action Area is approximately 88,657 acres. Although there is only one known [northern spotted owl] activity center and home range in the Action Area . . ., the 1.3-mile buffer area was still assessed to account for any future overlapping activity centers, or partial/entire cores or home ranges(s). 6 route in to the 1 (PAR 1291.) 2 “The Forest Service‟s choice of home range as the 3 physical scope for cumulative effects analysis was not arbitrary 4 or capricious,” and there is no evidence indicating that the CEQ 5 guidelines consider the natal dispersal distance a better scope 6 of analysis. Idaho Sporting Congress, Inc. v. Rittenhouse, 305 7 F.3d 957, 974 (9th Cir. 2002)); see also Conservation Congress v. 8 U.S. Forest Serv., 555 F. Supp. 2d 1093, 1108-09 (E.D. Cal. 2008) 9 (approving of cumulative effects analysis that used the northern 10 spotted owl‟s home range). 11 12 Therefore, the Forest Service‟s motion on this claim is granted and Plaintiff‟s motion is denied. 13 B. Failing to Consider a Reasonable Range of Alternatives 14 Plaintiff argues the Forest Service violated NEPA by 15 failing to consider a reasonable range of alternatives to the 16 Project in its EA. (Compl. ¶¶ 53-56.) 17 Before approving a proposed action, NEPA requires the 18 Forest 19 alternatives.” 42 U.S.C. § 4332(2)(E). “[A]n agency‟s obligation 20 to consider alternatives under an EA is a lesser one than under 21 an EIS.” Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 22 915 (9th Cir. 2012). “Where with an EIS, an agency is required to 23 „rigorously 24 alternatives,‟ with an EA, an agency is only required to include 25 a 26 (quoting N. Idaho Cnty. Action Network v. U.S. Dep‟t of Transp., 27 545 F.3d at 1153.) “The touchstone of [the] . . . inquiry is 28 whether brief Service to explore discussion an [EA‟s] “study, and of develop, objectively reasonable selection and 7 and describe evaluate all alternatives.” discussion of appropriate reasonable Id. at 915 alternatives 1 fosters 2 participation.” Cal. v. Block, 690 F.2d 753, 767 (9th Cir. 1982). 3 An agency is not required to consider alternatives “beyond those 4 reasonably related to the purposes of the project.” Westlands 5 Water Dist. v. U.S. Dep‟t of Interior, 376 F.3d 853, 868 (9th 6 Cir. 2004). 7 1. informed decision-making and informed public Alternative That Would Preclude Logging Trees 8 Greater Than or Equal to 21-Inches in Diameter 9 The Forest Service considered “[a]n alternative that 10 precludes 11 diameter, but did “not consider[] [it] in detail because [the 12 alternative] would not reasonably meet the [P]roject purpose and 13 need.” (PAR 99.) Plaintiff argues this conclusion was arbitrary 14 or capricious since it was not supported by evidence and because 15 the Forest Service unfairly considered the 21-inch alternative in 16 combination 17 alternatives. (Pl. Mot. 16:5-9; 18:16-20.) 18 the The harvest with Forest of trees other more Service above . . . 21 restrictive responds it was inches” in diameter-based not required to 19 consider the 21 inch alternative in isolation and its analysis 20 sufficiently 21 Project‟s purpose of improving forest health, since it “would 22 allow disease-infected . . . trees . . . to continue to infect 23 adjacent 24 composition of mixed stands from shifting back to pine, leaving 25 more stands vulnerable to wildfire.” (Def. Opp‟n 12:12-22.) explained young why [trees]” the and alternative “would did prevent not the meet the species- 26 The Forest Service discussed the Project‟s goals in the 27 PAR, specifically stating its objectives included “improve[ing] 28 forest health and growth” and “reducing the risk of catastrophic 8 1 fire.” (PAR 4065-66, 370.) 2 3 When considering the 21-inch alternative, the Forest Service stated in part: 4 An alternative that precludes the harvest of trees above a set diameter (several upper limits were suggested, including 12, 18 and 21 inches) and larger was not considered in detail because it would not reasonably meet the project purpose and need . . . . An upper diameter limit that excludes overstory tree diameters would not be effective in accomplishing treatment objectives for the following reasons: 5 6 7 8 9  High stocking levels include overstory trees and stocking could not be reduced to desired levels by limiting harvest to trees based solely on dbh [diameter at breast height].  Disease-infected lodgepole pine overstory trees would continue to infect adjacent young lodgepole pine.  10 The species composition of mixed stands . . . on dry, fire-maintained sites would not shift back to pine, leaving stands more vulnerable to wildfire. Aspen would remain overtopped and suppressed by conifers exceeding the diameter limit. 11 12 13 14 15 16  17 18 19 (PAR 99.) 20 The Forest Service provided “satisfactory 21 explanation[s]” for concluding Plaintiff‟s alternative would not 22 further the Project‟s purposes of improving forest health and 23 reducing 24 Plaintiff‟s 25 infect nearby trees, would not properly redistribute the species 26 composition mix in dry areas, and would leave the forest open to 27 catastrophic fires. Motor Vehicle Mfrs. Ass‟n of U.S., Inc., 463 28 U.S. at 43; (see PAR 99.) These rationales apply to the 21-inch the risk of alternative catastrophic would allow 9 wildfire, by stating disease-infected that trees to 1 alternative regardless of whether it was considered alone or in 2 combination with other diameter based logging restrictions. NEPA 3 does 4 “beyond those reasonably related to the purposes of the project.” 5 Westlands Water Dist., 376 F.3d at 868. Therefore, the Forest 6 Service‟s motion on this claim is granted and Plaintiff‟s motion 7 is denied. not 8 require 2. the Forest Service to consider alternatives Alternative that Does Not Affect Northern Spotted 9 Owl Habitat 10 Plaintiff argues that the Forest Service‟s conclusion 11 that “an alternative that does not affect [northern spotted owl] 12 habitat 13 critical, suitable 14 dispersal habitat,” 15 aspects of the purpose and need” of the Project is arbitrary or 16 capricious since the Forest Service‟s reasoning is contradictory 17 and inconsistent with prior Forest management decisions. (PAR 99, 18 100.) and specifically 19 a. 20 does (nesting, “fail[ed] not propose roosting, to activity foraging) adequately meet within capable the or major Contradictory Reasoning Plaintiff argues the Forest Service‟s stated reasons 21 for 22 spotted 23 therefore arbitrary. 24 25 26 27 28 dismissing owl the alternative habitat are that does inconsistent not with affect each northern other and The Forest Service stated in the relevant part of its discussion of the alternative: The predicted effects of [this alternative] (no treatment in critical, dispersal or suitable habitat) would be very similar in effects to [northern spotted owl] habitat under the action alternatives analyzed in 10 1 2 3 4 5 6 detail, as all treated critical foraging and dispersal habitat would continue to function as such in both the short- and long-term. . . The exception is that capable habitat would remain in its overstocked, stagnant condition. . . . This alternative fails to adequately meet the major aspects of the purpose and need and was eliminated from detailed study because:  Inter-tree competition would not be alleviated within foraging and capable stands, and therefore the project would not meet the purpose and need in these areas of improving forest health and reducing fuels;  Stand density indices would remain at 240 to 470 within 17 percent of the area proposed for treatment, continuing to result in poor tree health, reduced vigor, increased competition for nutrients, light and water, and leading to future disease and mortality increases within these adjacent healthy stands;  It would result in increased stress induced mortality within suitable and capable habitat, with fewer large diameter trees and snags over time (based on growth modeling). . .  7 It would not encourage or accelerate the development of resilient latesuccessional habitat within current suitable habitat, nor protect it from loss resulting from disease or fire. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 (PAR 100) (emphasis added.) 22 NEPA does not require that the Forest Service consider 23 alternatives “beyond those reasonably related to the purposes of 24 the project.” Westlands Water Dist., 376 F.3d at 868. Nor does it 25 “require[] [the Forest Service] to undertake a separate analysis 26 of alternatives which are not significantly distinguishable from 27 alternatives 28 similar consequences.” Id. actually considered, 11 or which have substantially 1 Plaintiff argues that when the Forest Service dismissed 2 the alternative because it simultaneously did not meet the 3 Project‟s purpose and was “very similar” to alternatives that met 4 the Project‟s purpose, its analysis was internally inconsistent. 5 (Pl. Mot. 24:18-27.) 6 The Forest Service responds that it “described several 7 ways in which the proposed alternative would fail to adequately 8 meet . . . the Project‟s purpose and need” and that “[w]hile the 9 Forest Service recognized that the predicted effects of [other 10 alternatives analyzed in detail] would be similar to the proposed 11 alternative insofar as neither . . . would downgrade or remove 12 northern spotted owl habitat,” the similarities did not extend to 13 the Project‟s purpose of promoting forest health. (Def. Opp‟n 14 9:18-19; 10:20-21) (emphasis added). 15 The Forest Service provided a reasoned explanation for 16 its conclusion 17 Project‟s purpose of promoting forest health since it would not 18 alleviate 19 mortality. (PAR 99-100.) Its conclusion is reasonable even though 20 the alternative was “very similar” to alternatives that met the 21 Project‟s purpose and need, since their similarity only concerned 22 their “effects to [northern spotted owl] habitat” and the Forest 23 Service‟s reasons for determining Plaintiff‟s alternative did not 24 meet the Project‟s purpose and need are unrelated to its effects 25 on northern spotted owl habitat. (PAR 100.) For these reasons, 26 NEPA 27 alternative in further detail. Westlands Water Dist., 376 F.3d at 28 868 did that inter-tree not (agency Plaintiff‟s stress, require need not the alternative which causes Forest consider 12 did not meet stress-induced Service to alternatives consider “beyond the tree the those 1 reasonably related to the purposes of the project.”). 2 3 Therefore, the Forest Service‟s motion on this claim is granted and Plaintiff‟s motion is denied. 4 b. 5 Plaintiff at an Inconsistent Reasoning argues earlier not because northern Service 7 habitat in other parts of the forest, it now cannot reject an 8 alternative that would prevent logging in northern spotted owl 9 habitat in the Project area. (Pl. Mot. 24:18-23; 22:22-24:5.) Forest Service spotted owl 10 Specifically, 11 considered logging northern spotted owl habitat in a part of the 12 forest referred to as the Porcupine Late Successional Reserve 13 (“LSR”), but ultimately decided against logging there and, as a 14 result, the Forest Service cannot now log northern spotted owl 15 habitat in the Project area without further explanation. (Pl. 16 Mot. 24:2-5.) 17 the log Forest decided argues to the 6 Plaintiff date that previously The Forest Service contends Plaintiff‟s focus on the 18 LSR is a red herring because of the geographic differences 19 between the Project area and the LSR. (Fed. Def.‟s Reply Supp. 20 Def.‟s Mot. Summ. J. (“Def. Reply”) 7:15-18, ECF No. 30.) 21 “In order to balance environmental and economic needs, 22 the [Forest Service] designates certain forest areas for logging 23 and 24 (LSRs), for conservation.” League of Wilderness Defenders Blue 25 Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1125 (9th 26 Cir. 2010). LSRs are designated areas of forest land that “lie at 27 the heart of the [Forest Service‟s] ecosystem-based conservation 28 strategy for the northern spotted owl.” Or. Natural Res. Council reserves other areas, called 13 late successional reserves 1 Fund v. Brong, 492 F.3d 1120, 1126 (9th Cir. 2007). “The . . . 2 LSR 3 successional stands on the far eastern edge of the Shasta-Trinity 4 National Forest and to help provide for connectivity of habitat 5 for 6 owl.” (PAR 274-275.) [at issue] against 9 commenters 12 13 14 15 16 17 18 19 20 species, to maintain including the the few northern late- spotted The Forest Service previously considered, but decided 8 11 established late-successional 7 10 was logging in expressed the LSR in concern.” part (PAR because 61.) The “several public Forest Service explained in its EA in relevant part: Prior to the 2012 EA, a similar project that additionally included the Porcupine Late Successional Reserve (LSR) was considered in a 2009 EA (USDA-FS, 2009a) and decision. The 2009 decision was reversed on appeal. The Forest Supervisor opted to defer treatment units within the LSR in the Proposed Action in the 2012 EA and in this revision. No silvicultural or fuels treatments are included in the Porcupine LSR in alternatives considered in detail. While it is recognized that the original purpose and need for Action in the LSR is still valid, actions in the Porcupine LSR may be considered in a future proposal specific to the Porcupine LSR. Road actions in the LSR remain in the action alternatives of this revised analysis.” (PAR 44 n.2.) 21 The location of northern spotted owl habitat in the LSR 22 is geographically distinct from the location of northern spotted 23 owl habitat in the Project area. (Compare PAR 2729 (map showing 24 northern spotted owl habitat in the Late Successional Region) 25 with PAR 100 (explaining that northern spotted owl habitat in the 26 Project area is “interspersed”).) Specifically, owl habitat in 27 the LSR is contained in a discrete area while habitat in the 28 Project is noncontiguous. (Id.) 14 1 The geographic distinction, between the LSR and the 2 Project area, 3 “maintain[ing] 4 eastern edge of the Shasta-Trinity National Forest and to help 5 provide for connectivity of . . . the northern spotted owl,” make 6 it reasonable for the Forest Service to reject an alternative 7 that would prevent logging northern spotted owl habitat in the 8 Project area while “defer[ring] treatments . . . within the LSR.” 9 (PAR 247-75, 44 n.2.) Therefore, the Forest Service‟s summary 10 judgment motion on this claim is granted and Plaintiff‟s motion 11 is denied. 12 3. 13 combined the few with the LSR‟s unique late-successional purpose stands on the of far Remaining “Reasonable Range of Alternatives” Claims 14 The Forest Service seeks summary judgment on 15 Plaintiff‟s remaining “reasonable range of alternative” claims, 16 in which Plaintiff alleges the Forest Service “considered only 17 near-identical alternatives” and “prepared an unreasonably narrow 18 purpose 19 Service argues it is entitled to summary judgment on these claims 20 since 21 consideration to five, which “span a tremendous range, including 22 numerous permutations of actions and treatment locations;” and 23 therefore, the PAR does not support Plaintiff‟s claims. (Fed. 24 Def.‟s Mot. Summ. J. (“Def. Mot.”) 15:7-11; 17:17-18, ECF No. 25 13.) 26 and it need statement.” considered Plaintiff (Compl. fourteen did not ¶¶ 53, alternatives address these 56.) and The gave allegations 27 Complaint or respond to the Forest Service‟s arguments. 28 /// 15 Forest detailed in the 1 The “point[ed] prevails out that on this there is portion an of absence its motion 3 evidence to support the nonmoving party‟s case.” Soremekun v. 4 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). C. it Service 2 5 since Forest of Failing to Take a “Hard Look” at the Project’s 6 Environmental Impacts 7 Plaintiff alleges the Forest Service failed to take a 8 “hard look” at the environmental impacts of the Project. (Compl. 9 ¶ 62.) “The hallmarks of a „hard look‟ are thorough investigation 10 into environmental 11 potential environmental harms.” Nat‟l Audubon Soc‟y v. Dep‟t of 12 Navy, 442 F.3d 174, 185 (4th Cir. 2005). “NEPA . . . require[s] 13 that agencies take a „hard look‟ at the environmental effects of 14 their planned action.” Marsh v. Or. Natural Res. Council, 490 15 U.S. 16 “federal agencies must „carefully consider[] detailed information 17 concerning 18 action],‟ but . . . are not require[d] to do the impractical.‟” 19 Klamath-Siskiyou Wildlands Ctr. v. Burea of Land Mgmt., 387 F.3d 20 989, 992-93 (9th Cir. 2004) (alterations in original) (quotations 21 omitted). “The role of the courts is simply to ensure that the 22 agency has adequately considered and disclosed the environmental 23 impact of its actions and that its decision is not arbitrary or 24 capricious.” Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 25 462 U.S. 87, 97 (1983). 26 /// 27 /// 28 /// 360, 374 impacts (1989). significant To and forthright satisfy environmental 16 the acknowledgment “hard impacts look” [of the of standard proposed 1 1. 2 Plaintiff argues the Forest Service failed to take a 3 “hard look” at whether the number of snags in the Project area 4 met or exceeded the Forest Plan‟s snag retention standard. (Compl 5 ¶ 62.) 6 All management activities undertaken by the Forest Service must comply with the [F]orest [P]lan . . . . [and the Forest Plan must address how to] maintain viable populations of native and desired non-native wildlife species. In order to ensure compliance with the [F]orest [P]lan . . . the Forest Service must conduct an analysis of each “site specific” action, such as a timber sale, to ensure that the action is consistent with the [F]orest [P]lan. 7 8 9 10 11 12 Snag Baseline Data and Snag Deficits Rittenhouse, 305 F.3d at 961 (citations omitted). 13 The Forest Plan for Shasta-Trinity Forest states: at “a 14 minimum, snags are to be retained . . . at levels sufficient to 15 support 16 potential population levels . . . [with] an average of 1.5 snags 17 per 18 height.” (PAR 4480)(emphases added.) As part of the EA for the 19 24 Project, the Forest Service determined: [a]ll action alternatives [for the Project] retain existing snag treatment units at a level that exceeds the Forest Plan standards and guidelines for matrix lands and that support species of cavity-nesting birds at 40 percent of potential population levels. At a minimum, two snags per acre at least 15 inches in diameter and at least 20 feet in height would be retained and snags will be retained in groups where available. 25 (PAR 1259.) 20 21 22 23 26 acre species of greater Plaintiff cavity-nesting than 15 argues inches that in the birds at diameter Forest 40 and Service percent 20 feet relied of in on 27 “conclusory allegations” when stating the Project will satisfy 28 the Forest Plan snag retention standard, and therefore failed to 17 1 demonstrate that the agency took a “hard look” at the issue. (Pl. 2 Mot. 28:1-7.) Specifically, Plaintiff contends the Forest Service 3 did not disclose the data on which it relied in reaching its 4 conclusion and did not address conflicting 2003 survey results. 5 The Forest Service contends it disclosed data in the EA 6 supporting its conclusion that the Forest Plan snag retention 7 standard was being met and that it was not required to address 8 prior conflicting survey results since those results had “been 9 superseded by more recent and more site-specific evaluations.” 10 (Def. Opp‟n 15:4-9; 16:10-13; 19:6-20.) 11 The PAR reveals that the Forest Service has conducted 12 several analyses of snag levels in the Forest; relevant here are 13 analyses conducted in 2003 and 2011. The 2003 analysis concluded: 14 “[c]urrent 15 distribution 16 distribution may be correlated with landtype associations). Snag 17 surveys for existing and past projects . . . indicate that snag 18 levels are lower than Forest Plan minimums.” (PAR 4070.) The 2011 19 analysis observed: “snag... habitat continues to increase over 20 time 21 outbreak” and determined that the Project‟s “[p]roposed treatment 22 units have at least two snags per acre greater than 15 inches dbh 23 [diameter at breast height] . . . [b]ased on unit assessment[s] 24 [conducted] in October 2011.” (PAR 1259, 1261.) as a snag levels is result not of in the uniform wildfire watershed across events are the and unknown. landscape insect and Snag (Snag disease 25 The Forest Service concluded based on the 2011 survey 26 data that the Project would not reduce snag levels below the 27 Forest Plan snag retention standard, stating: [it] would not reduce the amount of snag... habitat at the Forest level (or project 18 28 1 level). The extent of reduced snag density is negligible considering that ongoing snag ... recruitment from insect and disease activity would continue across the Forest. Natural recruitment will also continue within the project area, only at slower rates than what is currently occurring. 2 3 4 5 (PAR 1261.) 6 Further, the Forest Service opined: 7 [the Project will] retain all snags 15 inches in diameter and larger and at least 20 feet in height . . . with the following [two] exceptions: . . . If more than 10 snags exist in a group (snag pocket) retain at least 10. Snags in excess of 10 in snag pockets in the coarse woody debris deficit units may be felled and left only as necessary to meet large woody material requirements for Soil Quality Standards. . . . [and] Hazardous snags (snags that pose a threat to life or property) may be cut, as necessary for safety. 8 9 10 11 12 13 14 15 (PAR 77.) 16 The Forest Service‟s analysis of the 2011 survey data 17 shows it took a “hard look” at snag levels. The Forest Service 18 sufficiently 19 “[p]roposed treatment units have at least two snags per acre 20 greater than 15 inches dbh . . . . [b]ased on unit assessment[s] 21 [performed] 22 reasonable for the Forest Service to conclude that snag levels 23 exceeded the Forest Plan snag retention standard since its most 24 recent 2011 survey data showed snag levels increased over time 25 and exceeded the Forest Plan snag retention standard. (PAR 1259, 26 1261.) It was also reasonable for the Forest Service to conclude 27 that implementing the Project would not cause snag levels to fall 28 below the Forest Plan snag retention standard since insect and disclosed in October the data 2011.” 19 on (PAR which it 1259.) relied, Further, stating: it was 1 disease activity continue to recruit new snags and the Project 2 will not log existing snags except where they occur in groups of 3 ten or more or where a snag poses a threat to life or property. 4 (PAR 1261, 77.) 5 The data conclusions “carefully in the demonstrate detailed the Forest 7 concerning significant environmental impacts” of the Project on 8 snag levels. Klamath-Siskiyou Wildlands Ctr., 387 F.3d at 992 9 (quotations omitted). Therefore, the Forest Service‟s motion on information this claim is granted and Plaintiff‟s motion is denied. 11 2. 12 Plaintiff‟s 13 consider[ed] EA 6 10 Service and Remaining “Hard Look” Claims remaining “hard look” claims allege 20 Forest Service did not “adequately analyze”: (A) the potential for wildfire in the project area as a result of logging; (B) northern spotted owl use of burned forests of all severities; (C) degradation of existing and future northern spotted owl habitat; (D) effects to northern spotted owl prey; (E) barred owls and their effects on the northern spotted owl; (F) the effects of regeneration logging on fire behavior; (G) the effects of wildfire, vegetation, and natural recovery process from logging large diameter trees; (H) the past, present, and reasonably foreseeable cumulative impacts; . . . [and] (J) landings. 21 the (Compl. ¶ 62.) 14 15 16 17 18 19 22 The Forest Service argues it is entitled to summary 23 judgment on Plaintiff‟s remaining “hard look” claims since the 24 “EA and its Appendices span over 500 pages,” “rest[] upon dozens 25 of individual specialists‟ reports spanning thousands of more 26 pages” and do not support Plaintiff‟s allegations. (Def. Mot. 27 21:27-22:1; 28 Service‟s argument. 22:1-5.) Plaintiff 20 has not addressed the Forest 1 The Forest Service‟s motion is granted since it 2 “point[ed] out that there is an absence of evidence to support 3 the [Plaintiff‟s] case” and Plaintiff failed to come forward with 4 “specific facts showing there is a genuine issue for trial.” 5 Soremekun, 509 F.3d at 984. 6 D. Failing to Comply with the Forest Plan’s 7 Snag Retention Standard 8 Plaintiff argues the Forest Service violated the NFMA 9 by failing to ensure the Project satisfied the Forest Plan snag 10 retention standard. (Pl. Mot. 35:10-21.) The Forest Service 11 contends its analysis was sufficient. (Def. Opp‟n 23:22-24.) 12 “It is well-settled that the Forest Service‟s failure 13 to comply with the provisions of a Forest Plan is a violation of 14 NFMA” 15 reviewing 16 [administrative] record that the agency is complying with the 17 forest 18 Forest Serv., 418 F.3d 953, 961-62 (9th Cir. 2005). 19 and for an court plan The agency must be standard[s].” Forest action to “[]able Native Service has comply to the determine Ecosystems shown with it Council complied NFMA, from v. with a the U.S. the 20 Forest Plan snag retention standard and that it “articulate[d] a 21 rational connection between the facts found and the conclusions 22 reached.” Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 23 1157 (9th Cir. 2006) abrogated on other grounds by Winter v. 24 Natural Res. Council, Inc., 555 U.S. 7 (2008). Therefore, the 25 Forest Service‟s summary judgment motion on the NFMA claim is 26 granted and Plaintiff‟s motion is denied. 27 /// 28 /// 21 1 E. Failing to Prepare an Environmental 2 Impact Statement (“EIS”) 3 Plaintiff alleges the Forest Service violated NEPA by 4 failing to prepare an EIS for the Project. (Compl. ¶¶ 70-71.) 5 In 42 U.S.C. § 4332(2)(C), NEPA requires that all 6 federal agencies must include “a detailed statement . . . on the 7 environmental impact of the proposed action” “in every . . . 8 major Federal action[] significantly affecting the quality of the 9 human environment.” (emphasis added). “Where an EIS is not 10 categorically required, the agency must prepare an Environmental 11 Assessment 12 significant enough to warrant an EIS.” Ocean Advocates v. U.S. 13 Army Corps of Eng‟rs, 402 F.3d 846 864 (9th Cir. 2004). If, after 14 preparing an EA, the agency concludes an EIS is not required, it 15 must put forth “a convincing statement of reasons that explain[s] 16 why 17 insignificantly.” Id. “An agency‟s decision not to prepare an EIS 18 will be considered unreasonable if the agency fails to „supply a 19 convincing 20 insignificant.‟” Save the Yaak Comm. v. Block, 840 F.2d 714, 717 21 (9th Cir. 1988) (quoting The Steamboaters v. FERC, 759 F.2d 1382, 22 1393 (9th Cir. 1985)). the 23 to determine project will statement whether impact of the the reasons environmental environment why potential no impact more effects than are The term “significantly” is explained in 40 C.F.R. § 24 1508.27 25 proposed 26 identifies 27 evaluating a Project‟s impact, including inter alia: (5) the degree to which the possible effects on the human environmental are highly 22 28 is as requiring action‟s consideration impact. “intensity 40 factors” of the C.F.R. an agency § intensity of the 1508.27(b)(1)-(10) must consider when 1 uncertain or involve unique or unknown risks; . . . and (9) “the degree to which the action may affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973. 2 3 4 5 An EIS is not required each time an “intensity factor” 6 is implicated; instead it is only required if the “degree to 7 which 8 factors is significant. Envt‟l Prot. Info. Ctr. v. U.S. Forest 9 Serv., 451 F.3d 1005, 1012 (9th Cir. 2006). an action may adversely affect” one of the intensity 10 The Forest Service considered the “intensity factors” 11 in the EA and concluded that “an environmental impact statement 12 will 13 significant 14 considering the . . . intensity of impact[].” (PAR 25.) not be prepared” effect on because the the quality Project of the “will human not have a environment, 15 1. Significant Effects on the Northern Spotted Owl 16 Plaintiff argues NEPA required the Forest Service to 17 prepare an EIS for the Project since it will have a significant 18 impact on northern spotted owls by logging “within . . . critical 19 [northern spotted owl] habitat.” (Pl. Mot. 31:5-9.) The Forest Service responds that the Project will not 20 21 have a significant impact on critical owl habitat since the 22 Project will improve treated foraging and dispersal habitat and 23 “any impact the Project[] . . . [is] expected to have on northern 24 spotted owl habitat [is] . . . predicted to be beneficial over 25 the long-term even though in the short-term, there would be some 26 habitat elements reduced.” (Def. Opp‟n 22:9-24.) 27 The Forest Service addressed the Project‟s impact on 28 northern spotted owl habitat in the EA, stating in relevant part: 23 1 Approximately 137 acres of foraging habitat..., 23 acres of dispersal habitat..., and 41 acres of capable habitat . . . are proposed for treatment . . . . Given that: 1) treatments are not proposed within nesting/roosting habitat or high-quality foraging habitat and, 2) treatments within 137 acres of foraging habitat will not remove primary constituent elements of critical habitat because they have been designed to retain the current function of foraging habitat following treatment, and 3) treatments in dispersal and capable habitat will not significantly affect [northern spotted owl] dispersal through the [P]roject area, the [Forest] Service determines that the Project may affect, but is not likely to adversely affect designated critical habitat in the action area. 2 3 4 5 6 7 8 9 10 11 (PAR 371.) The 12 Forest Service adequately explained that the 13 Project will not have a significant impact on northern spotted 14 owl 15 “nesting/roosting habitat or high-quality foraging habitat,” and 16 that in the areas where the Project intersects northern spotted 17 owl 18 interfere 19 provides “a convincing statement of reasons explaining why the 20 project will impact [the spotted owls critical habitat] no more 21 than insignificantly,” even though it proposes logging in 201 22 acres of northern spotted owl habitat. Ocean Advocates, 402 F.3d 23 at 864. Since the Forest Service‟s conclusion that the Project 24 would not have a significant impact on critical owl habitat was 25 not arbitrary or capricious, no EIS was required. Therefore, the 26 Forest Service‟s motion on this claim is granted and Plaintiff‟s 27 motion is denied. 28 /// habitat since foraging with and the it will not dispersal owl‟s use log in habitat, of 24 the areas the land. that logging (PAR serve will 371.) as not This 1 2. Highly Uncertain or Unknown Risks to Northern 2 Spotted Owls 3 Plaintiff additionally argues an EIS was required since 4 the Project aims to support northern spotted owls by reducing the 5 risk of wildfire yet, “there is significant uncertainty as to 6 whether [the prevention of wildfire] . . . is beneficial or 7 adverse to the northern spotted owl.” (Pl. Mot. 31:21-32:2.) 8 The Forest Service acknowledges “some uncertainty as to 9 the extent to which northern spotted owls used burned forest to 10 forage” but argues “the effects of the Project as a whole . . . 11 are 12 uncertainty that . . . . the loss of nesting and roosting habitat 13 from catastrophic wildfire remains among the primary threats to 14 the survival of the owl.” (Def. Reply 12:22-13:7.) 15 [not] highly The uncertain” “scientific since “[t]here uncertainty” is no concerning serious northern 16 spotted owls‟ use burned habitat is addressed in the EA where the 17 Forest Service states in relevant part: 18 19 20 21 22 23 24 25 While it has been shown that California spotted owls show an apparent preference for foraging in burned areas of all severities (Bond, et al., 2009) the author attributed the majority of these results to the likelihood that post-burn use by owls is associated with an “increased abundance or accessibility of prey.” The . . . study also noted that while California spotted owls foraged in all burn severity areas (and may have preferred high-severity burn areas) they avoided high and moderate severity areas for roosting, and presumable nesting. (PAR 143.) 26 The Forest Service states in the PAR that this research 27 calls into question conventional wisdom that northern spotted 28 owls do not prefer high-severity burn areas for foraging, but 25 1 does not suggest the owls prefer high-severity burn areas for 2 roosting. (PAR 143.) The distinction is important because the 3 Revised Recovery Plan for the northern spotted owl states that 4 one of “the most important . . . threats to [the species is] ... 5 habitat loss or degradation from [high-severity] stand replacing 6 wildfire.” (PAR 27416) (emphasis added.) Stand replacing wildfire 7 “reset[s] [northern spotted owl habitat] to an early-seral stage 8 with small tree size and large openings that would be unsuitable 9 for [northern spotted owl] nesting, roosting, foraging and 10 dispersal.” (PAR 143.) Plaintiff offers no evidence to refute 11 this. 12 Scientific controversy over whether northern spotted 13 owls prefer to use severely burned forests is not relevant to the 14 question 15 spotted owl is highly uncertain since stand replacing wildfire 16 “reset[s]” the Forest and produces habitat containing “small tree 17 size 18 northern 19 eliminate rather than create new northern spotted owl habitat and 20 the Project is designed to “reduc[e] the risk of [just such] 21 catastrophic fire[s].” (PAR 370.) Since uncertainty over whether 22 northern spotted owls prefer to forage in burned habitat does not 23 raise concerns as to whether the Project‟s overall effect on the 24 owls would be highly uncertain, no EIS was required. Barnes v. 25 U.S. Dep‟t of Transp., 655 F.3d 1124, 1140 (9th Cir. 2011) (“An 26 agency must generally prepare an EIS if the environmental effects 27 of a proposed agency action are highly uncertain”). 28 /// and whether large spotted wildfire‟s openings owl. overall that (PAR would 143.) 26 effect be These on the unsuitable” stand northern for replacing the fires 1 2 Therefore, the Forest Service‟s motion is granted and Plaintiff‟s motion is denied. 3 IV. Conclusion 4 For the stated reasons, Plaintiff‟s summary judgment 5 motion is DENIED and the Forest Service‟s summary judgment motion 6 is GRANTED. The Clerk of the Court shall enter judgment in favor 7 of the Forest Service and close this action. 8 Dated: March 20, 2015 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?