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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CONSERVATION CONGRESS, a nonprofit organization,
Plaintiff,

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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.

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Plaintiff

Conservation

Congress

and

Defendant

United

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States Forest Service (“Forest Service”) each move for summary

20

judgment on all claims in Plaintiff‟s Complaint. The County of

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Siskiyou filed an amicus curiae brief in support of the Forest

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Service‟s motion.

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Plaintiff

alleges

in

its

Complaint

that

the

Forest

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Service‟s

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(“EA”) and Finding of No Significant Impact (“FONSI”) for the

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Porcupine Vegetation and Road Management Project (“the Project”)

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violated the National Environmental Policy Act (“NEPA”) and the

decision

authorizing

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1

the

Environmental

Assessment

1

National

2

identified the purposes of the Project as (1) improving forest

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health by thinning trees, thereby reducing fuels that pose a risk

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of igniting a catastrophic fire in the Shasta-Trinity National

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Forest (“the Forest”), (2) maintaining a fuel break, and (3)

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restoring

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Record (“PAR”) 1, 4, 370, ECF No. 11.) “The project area is

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located near Porcupine Butte approximately 20 miles northeast of

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McCloud,” California. (PAR 1.)

Forest

meadow

Management

and

10

Act

aspen

(“NFMA”).

habitat.

The

(Project

Forest

Service

Administrative

I. LEGAL STANDARD

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“Agency decisions that allegedly violate . . . NEPA and

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NFMA are reviewed under the Administrative Procedure Act („APA‟),

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and may be set aside only if they are „arbitrary, capricious, an

14

abuse of discretion, or otherwise not in accordance with the

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law.‟” Or. Natural Res. Council Fund v. Goodman, 505 F.3d 884,

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889 (9th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A)). Agency action

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is arbitrary or capricious if it fails to “examine the relevant

18

data and articulate a satisfactory explanation for [the] action

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including a rational connection between the facts found and the

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choice made.” Motor Vehicle Mfrs. Ass‟n of U.S., Inc. v. State

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Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983). Judicial

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“[r]eview under this standard is to be „searching and careful,‟

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but

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judgment for that of the agency. This is especially appropriate

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where . . . the challenged decision implicates substantial agency

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expertise.” Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571

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(9th Cir. 1993).

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///

remains

„narrow,‟

and

a

court

2

is

not

to

substitute

its

1

A
of

party

seeking

4

(1986).

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nonmoving party must set forth, by affidavit or as otherwise

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provided in Fed. Rule Civ. Proc. (“Rule”) 56, „specific facts

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showing that there is a genuine issue for trial.‟” T.W. Elec.

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Serv., Inc. v. Pac. Elec. Contractors Ass‟n, 809 F.2d 626, 630

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(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

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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.

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Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir.

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2010) (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.

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1996)).

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II. REQUEST TO SUPPLEMENT THE ADMINISTRATIVE RECORD

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Plaintiff seeks in its reply brief to supplement the

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Project Administrative Record (“PAR”) by having judicial notice

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taken

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Reply Supp. Summ. J. (“Pl. Reply”) 2 n.1, ECF No. 31.) However,

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the district court need not consider a request made for the first

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time in a reply brief. See Zamani v. Carnes, 491 F.3d 990, 997

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(9th Cir. 2007).

of

the

Forest

Service‟s

Annual

Progress

Report.

(Pl.‟s

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“Generally, judicial review of agency action is limited

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to review of the administrative record.” Animal Def. Council v.

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Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988). The administrative
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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

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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

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the Project‟s effects using the largest area occupied by the

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owls, which in this case is the owl‟s natal dispersal distance of

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10 to 15 miles, and that the Forest Service abused its discretion

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when only analyzing the Project‟s impact using the owls 1.3 mile

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median home range. (Pl.‟s Am. Mot. Summ. J. (“Pl. Mot.”) 12:23-

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13:9; 13:15-25; 14:24-26, ECF No. 20.)

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NEPA

requires

that

an

agency‟s

assessment

of

the

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environmental impacts of a proposed Project include an analysis

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of the action‟s cumulative impact. Ctr. for Envtl. Law & Policy

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v. U.S. Bureau of Reclamation, 655 F.3d 1000, 1007 (9th Cir.

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2011).

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impact as “the impact on the environment which results from the

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incremental

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present,

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Cumulative

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collectively significant actions taking place over a period of

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time.” “[S]ometimes the total impact from a set of [projects]...

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may be greater than the sum of the parts.” Goodman, 505 F.3d at

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893. The CEQ publishes guidelines instructing federal agencies

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how to define the geographic boundaries of a cumulative effects

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analysis; the guidelines explain: “[a]nalyzing cumulative effects

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. . . requires the analyst to expand the geographic boundaries

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[of the analysis] . . . to encompass additional effects on the

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resources, ecosystems, and human communities of concern” beyond

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the Project area. (Malone Decl. Ex. A, p. 21, ECF No. 16.) “CEQ‟s

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interpretation of NEPA is entitled to substantial deference.”

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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

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geographic areas occupied by [the northern spotted owl] . . . .

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[i]n most cases, the largest of the[] areas [occupied by the owl]

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will

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effects.”(Malone Decl. Ex. A, p. 21, 24)(emphasis added.)

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be

the

The

appropriate

Forest

area

for

Service‟s

the

analysis

cumulative

of

cumulative

effects

analysis

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“includes the effects from habitat modification within an owl‟s

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home

range,

which

is

an

estimated

1.3-mile

radius

around

an

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activity center (e.g., nest site) or approximately 3,400 acres.”

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(PAR 1291)(emphasis added.)

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The

Forest

Service

explains

its

analysis

is

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“scientifically valid” and consistent with the CEQ guidelines

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since the owl‟s natal dispersal distance does not represent the

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“geographic area [they] occup[y]” but instead “represents the

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transient/movement

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establishing new permanent territory.” (Fed. Def.‟s Mem. Opp‟n

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Pl.‟s Mot. Summ. J. (“Def. Opp‟n”) 2:2-4; 5:4-15, ECF No. 24.)

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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).
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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

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guidelines consider the natal dispersal distance a better scope

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of analysis. Idaho Sporting Congress, Inc. v. Rittenhouse, 305

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F.3d 957, 974 (9th Cir. 2002)); see also Conservation Congress v.

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U.S. Forest Serv., 555 F. Supp. 2d 1093, 1108-09 (E.D. Cal. 2008)

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(approving of cumulative effects analysis that used the northern

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spotted owl‟s home range).

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Therefore, the Forest Service‟s motion on this claim is
granted and Plaintiff‟s motion is denied.

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B.

Failing to Consider a Reasonable Range of Alternatives

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Plaintiff argues the Forest Service violated NEPA by

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failing to consider a reasonable range of alternatives to the

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Project in its EA. (Compl. ¶¶ 53-56.)

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Before approving a proposed action, NEPA requires the

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Forest

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alternatives.” 42 U.S.C. § 4332(2)(E). “[A]n agency‟s obligation

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to consider alternatives under an EA is a lesser one than under

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an EIS.” Ctr. for Biological Diversity v. Salazar, 695 F.3d 893,

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915 (9th Cir. 2012). “Where with an EIS, an agency is required to

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„rigorously

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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.,

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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

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Water Dist. v. U.S. Dep‟t of Interior, 376 F.3d 853, 868 (9th

6

Cir. 2004).

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1.

informed

decision-making

and

informed

public

Alternative That Would Preclude Logging Trees

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Greater Than or Equal to 21-Inches in Diameter

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The Forest Service considered “[a]n alternative that

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precludes

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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

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the Forest Service unfairly considered the 21-inch alternative in

16

combination

17

alternatives. (Pl. Mot. 16:5-9; 18:16-20.)

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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

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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.



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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

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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
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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
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22
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24
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27