Conservation Congress v. United States Forest Service

Filing 37

ORDER signed by District Judge John A. Mendez on 6/4/19 DENYING 19 Motion for Summary Judgment and GRANTING 33 Motion for Summary Judgment. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CONSERVATION CONGRESS,

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2:18-cv-01694-JAM-DMC

Plaintiff,

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No.

v.
UNITED STATES FOREST SERVICE,

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Defendant.

ORDER DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT AND
GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

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On June 9, 2018, Plaintiff Conservation Congress filed a

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complaint against Defendant United States Forest Service (“the

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Forest Service”), alleging that the Service violated the

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Administrative Procedures Act, National Environmental Policy Act,

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and the National Forest Management Act.

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The parties filed cross-motions for summary judgment and reply

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briefs.

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J., ECF No. 33; Pl.’s Reply, ECF No. 34; Def.’s Reply, ECF No.

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35.

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Conservation Congress’s Motion for Summary Judgment and GRANTS

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the Forest Service’s Motion for Summary Judgment.1

See Compl., ECF No. 1.

See Pl.’s Mot. Summ. J., ECF No. 19; Def.’s Mot. Summ.

For the reasons set forth below, the Court DENIES

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This motion was determined to be suitable for decision
without oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for March 19, 2019.
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I.

FACTUAL AND PROCEDURAL BACKGROUND

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A. The Lassen 15 Project

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The Lassen 15 Restoration Project (“the Lassen 15 Project”)

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is planned for the Lassen Creek area of the Modoc National

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Forest.

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treatment areas within the approximately 25,000 acres of analysis

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area.

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Management Plan, amended by the Sierra Nevada Forest Plan

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Amendment, contains the standards and guidelines with which the

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LC15_000001.

Id.

It is comprised of 8,004 acres of

The Modoc National Forest Land and Resource

Lassen 15 Project must comply.

Id.

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The primary objective of the Lassen 15 Project is to address

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forest health concerns, including the risk of insect infestation,

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disease, and wildfire in the dense, homogeneous conifer forest.

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LC15_000002.

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vegetation treatments, including thinning and fuel break

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treatments; prescribed fire of 6,146 acres to be implemented over

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10 to 15 years; and several miles of temporary roads, to be

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decommissioned after use.

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involves tree planting of 90 acres at the rate of 200 trees per

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acre and stream restoration to restore aquatic conditions.

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LC15_000035.

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scheduled for 2018 to 2024.

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The Lassen 15 Project calls for 7,002 acres of

LC15_000003.

The Project also

Implementation of the Lassen 15 Project was
LC15_000011.

In the no action alternative, “no harvesting, tree planting,

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or other restoration actions” would occur; however, “[o]ngoing

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management practices such as limited road maintenance, fire

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suppression, and livestock grazing would continue[.]”

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LC15_000041.

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After considering ten factors identified in 40 C.F.R.
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§ 1508.27(b), Forest Supervisor Amanda McAdams issued a Finding

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of No Significant Impact (“FONSI”) for the Lassen 15 Project on

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May 21, 2018.

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Environmental Assessment, made available in August 2017,

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LC15_000005, in which the Forest Service weighed the impacts of

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implementing the Project against a no action alternative.

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LC15_000001.

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the initial final Environmental Assessment.

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LC15_000001.

The FONSI followed a revised final

Conservation Congress was one of three objectors to
LC15_000005.

B. The Joseph Creek Project

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The Joseph Creek Forest Health Project (“the Joseph Creek

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Project”) is planned within the Warner Mountain Ranger District

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of the Modoc National Forest.

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approximately 2,800 acres.

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Joseph Creek Project is governed by the standards and regulations

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in the Modoc National Forest Land and Resource Management Plan,

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amended by the Sierra Nevada Forest Plan Amendment.

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Id.

JC_000011.

It is comprised of

Like the Lassen 15 Project, the

Id.

The Joseph Creek Project seeks to remedy the above average

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stocking levels in the area and the tree mortality attributed to

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bark beetles, Heterobasidion root disease, and dwarf mistletoe.

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Id.

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trees to meet desired stocking levels.

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The Project will remove dead trees and thin areas of live
JC_000012–13.

The Joseph Creek Project was approved pursuant to a decision

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memorandum signed by Forest Supervisor Amanda McAdams on March

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16, 2018.

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Joseph Creek Project pursuant to the authority granted in Section

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8204 of the Agricultural Act of 2014, Pub. L. No. 113-79.

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JC_002512.

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///

JC_000019.

The Forest Service seeks to carry out the

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II.

OPINION

A. Legal Standard
1.

The National Environmental Policy Act

The National Environmental Policy Act (“NEPA”) “is a

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procedural statute that requires the federal government to

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carefully consider the impacts of and alternatives to major

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environmental decisions.”

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697 F.3d 1043, 1051–52 (9th Cir. 2012) (citing 42 U.S.C.

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§§ 4321, 4331).

Native Ecosystems Council v. Weldon,

NEPA does not mandate specific results, but

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instead requires agencies take a “hard look” at the

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environmental consequences of their actions and disseminate

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relevant environmental information to the public.

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Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).

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is concerned with process alone and merely prohibits uninformed—

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rather than unwise—agency action.”

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Network v. United States Dep’t of Commerce, 878 F.3d 725, 730

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(9th Cir. 2017) (internal quotation marks omitted).

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review of agency decision-making is “at its most deferential”

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when reviewing scientific judgments and technical analyses

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within the agency’s expertise.

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Surface Transp. Bd., 668 F.3d 1067, 1075 (9th Cir. 2011)

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(quoting Balt. Gas & Elec. Co. v. Natural Res. Def. Council,

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Inc., 462 U.S. 87, 103 (1983)).

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Robertson v.
“NEPA

Turtle Island Restoration

Judicial

N. Plains Res. Council, Inc. v.

2. Administrative Procedure Act
The Court reviews an agency’s NEPA compliance under the

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Administrative Procedure Act (“the APA”).

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Norton, 276 F.3d 1060, 1071 (9th Cir. 2001), opinion amended on

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denial of reh’g, 282 F.3d 1055 (9th Cir. 2002).
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Churchill Cty. v.

The APA

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“empowers federal courts to ‘hold unlawful and set aside agency

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action, findings, and conclusions’ if they fail to conform with

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any of six specified standards.”

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Council, 490 U.S. 360, 375 (1989) (quoting 5 U.S.C. § 706).

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Courts set aside agency actions that are “arbitrary, capricious,

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an abuse of discretion, or otherwise not in accordance with

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law.”

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Marsh v. Oregon Nat. Res.

5 U.S.C. § 706(2)(A).

“Judicial review of an agency decision typically focuses on
the administrative record in existence at the time of the

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decision and does not encompass any part of the record that is

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made initially in the reviewing court.”

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Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.

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1996).

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record affirms an agency action if there is a rational basis for

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the decision.

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475 F.3d 1136, 1140 (9th Cir. 2007).

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substitute its judgment for that of the agency.

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Sw. Ctr. for Biological

This “highly deferential” review of the administrative

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Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv.,
The Court may not
Id.

The National Forest Management Act

The National Forest Management Act (“the NFMA”) “directs

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the Forest Service to develop a comprehensive land and resource

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management plan (‘Forest Plan’) for each unit in the national

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forest system.”

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F.3d 836, 849–50 (9th Cir. 2013) (citing 16 U.S.C. § 1604(a)).

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Forest Plans “manage forest resources by balancing the

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consideration of environmental and economic factors,” furthering

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the NFMA’s purpose of “provid[ing] for diversity of plant and

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animal communities” in forest management.

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Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012); 16

Great Old Broads for Wilderness v. Kimbell, 709

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Native Ecosystems

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U.S.C. § 1604(g)(3)(B).

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Forest Plan, the “NFMA prohibits any site-specific activities

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that are inconsistent with the Forest Plan.”

Lands Council v.

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Powell, 395 F.3d 1019, 1033 (9th Cir. 2005).

Courts accord

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substantial deference to the Forest Service’s interpretation and

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implementation of its Forest Plan.

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B. Evidentiary Objections

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“In general, a court reviewing agency action under the APA

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After the Forest Service adopts a

Weldon, 697 F.3d at 1056.

must limit its review to the administrative record.”

San Luis &

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Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 992 (9th Cir.

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2014).

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Reviewing courts “may consider extra-record evidence where

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admission of that evidence (1) is necessary to determine whether

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the agency has considered all relevant factors and has explained

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its decision, (2) is necessary to determine whether the agency

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has relied on documents not in the record, (3) when

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supplementing the record is necessary to explain technical terms

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or complex subject matter, or (4) when plaintiffs make a showing

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of agency bad faith.”

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omitted).

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There are three narrow exceptions to this rule.

Id.

Id. at 992–93 (internal quotation marks

Conservation Congress has objected to the Forest Service’s

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inclusion of a declaration from Forestry Technician Traci Silva.

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See Silva Decl., ECF No. 33-1.

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this declaration to explain the difference and distinction

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between the Lassen 15 Project and the Joseph Creek Project.

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Def.’s Mem. at 13 n.2.

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Conservation Congress’s claims renders this declaration

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unnecessary.

The Forest Service submitted

Clarification regarding the nature of

See Def.’s Reply at 3–4.
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The Court will not

See

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consider the Silva Declaration or other materials outside of the

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administrative record.

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C. Analysis

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1.

Conservation Congress Has Abandoned Three Claims

Conservation Congress’s Complaint lists seven claims.

The

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Forest Service argues in its Motion for Summary Judgment that

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Conservation Congress has abandoned its second, third, and

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fourth claims.

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violated NEPA, the NFMA, and the APA by failing to take a hard

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look at the environmental impacts of the Lassen 15 Restoration

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Project (second claim); failing to adequately analyze and

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disclose the mitigation measures for the Lassen 15 Restoration

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Project (third claim); and failing to comply with the Sierra

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Nevada National Forest Plan Amendment for American (Pine) Marten

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(fourth claim).

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arguments on or acknowledgements of these claims in its summary

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judgment briefing.

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Service’s argument that it has abandoned the three claims.

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Court finds that Conservation Congress’s second, third, and

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fourth claims have been abandoned and summary judgment on these

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claims in favor of the Forest Service is granted.

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Ecosystems Council v. Weldon, 697 F.3d 1043, 1050 (9th Cir.

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2012).

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Those claims alleged that the Forest Service

Conservation Congress does not present any

It also fails to address the Forest
The

See Native

Conservation Congress’s four remaining claims allege that

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the Forest Service violated NEPA and the APA: (1) by failing to

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adequately analyze and disclose the cumulative effects of the

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Lassen 15 Restoration Project (first claim); (2) by using a

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Categorical Exclusion where extraordinary circumstances required
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preparation of an Environmental Assessment (fifth claim); (3) by

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failing to adequately or accurately evaluate and disclose the

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cumulative effects of the Joseph Creek Project in relation to

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other projects, including the adjacent Lassen 15 Project (sixth

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claim); and (4) by violating the NFMA Standards and Guidelines

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for Minimum Proportions of Seral Stages and for Average Snag

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Densities (seventh claim).

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2.

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Compl. at 10–20.

First Claim: Cumulative Effects of Grazing on the
Lassen 15 Project

Conservation Congress’s first claim asserts that the Forest

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Service violated NEPA by failing to take a hard look at the

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baseline and cumulative impacts of grazing on the Lassen 15

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Project.

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the Forest Service did not “provide a meaningful description of

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the baseline through past and ongoing impacts of cattle grazing

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in the project area.”

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Compl. at 10–12.

Conservation Congress argues that

Opp’n Mem. at 13.

This argument lacks merit.

The Forest Service adequately

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evaluated the cumulative effects of grazing in the Lassen 15

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Project area.

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discusses how free-range cattle and sheep began grazing in the

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area in the late 1800s.

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grazing in the area is on a rotation system from May to

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September and notes that most of the area is subject to light

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livestock use and is in satisfactory condition.

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While some of the existing grazing is moderate or heavy in key

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riparian areas, the Forest Service found that the Lassen 15

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Project would not contribute to the problem.

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Environmental Assessment anticipates that the Project may reduce

For example, the Environmental Assessment

LC15_000080.

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It discusses how seasonal

LC15_000124.

Id.

Rather, the

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the number of cattle in riparian areas by improving grazing

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distribution patterns in the uplands.

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the present grazing activities could have adverse effects on the

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Lassen 15 Project’s newly planted conifer seedlings, the

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Environmental Assessment finds these impacts will be mitigated

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by the planting in areas that have low forage use for cattle.

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LC15_000066.

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LC15_000163–64.

Although

Outside of the Environmental Assessment itself, the Forest
Service reviewed the impact of grazing in the Revised Range

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Resource Specialist Report for Lassen 15 Restoration Project,

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LC15_001316–41, and in the reports considering the impact of the

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Project on aquatic species, LC15_000872; fuels, LC15_000988,

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LC15_001017–18; heritage, LC15_001132; hydrology, LC15_001193,

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LC15_001196; roads, LC15_001430; soils, LC15_001553; and

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wildlife, LC15_001595–001603.

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similar grazing analysis to be sufficient for an Environmental

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Impact Statement, which requires more stringent analysis.

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League of Wilderness Defs.-Blue Mountains Biodiversity Project

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v. U.S. Forest Serv., 549 F.3d 1211, 1220 (9th Cir. 2008).

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Forest Service’s assessment of the cumulative effects of grazing

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on the Lassen 15 Project fully satisfies NEPA’s “hard look”

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requirement.

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(9th Cir. 2019) (“[A]lthough Plaintiffs disagree with the EAs’

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factual conclusions, the Forest Service nonetheless considered

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the issues, gave them the requisite ‘hard look,’ and thus

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fulfilled their NEPA obligations.”).

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The Ninth Circuit has found

See

The

Cf. WildEarth Guardians v. Provencio, 923 F.3d 655

Many of Conservation Congress’s arguments focus on the
negative impacts of preexisting grazing activity on riparian
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areas, and what it views to be insufficient baseline

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information.

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identifies creeks that have been impacted by grazing as part of

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the existing conditions baseline.

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Conservation Congress seeks a level of specificity and detail

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that statute and regulations do not require.

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See Opp’n Mem. at 14–15.

The Forest Service

LC15_001185, LC15_001193.

Some of the detail Conservation Congress seeks pertains to

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future conditions and grazing patterns.

It takes issue with the

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Forest Service’s assessment that improving grazing distribution

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patterns in the uplands would potentially decrease grazing in

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riparian areas, LC15_000163–64, while simultaneously noting that

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livestock have an affinity for meadows and streams, LC15_000097.

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These statements are not inherently contradictory.

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Forest Service has provided information about the possible

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consequences of future actions, without wading into the murky

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waters of speculation.

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become an oracle, predicting exactly which variable outcome will

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flow from its proposed action.

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Rather, the

NEPA does not require the Forest Service

The Forest Service has elucidated the possible impacts of

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the Lassen 15 Project, in conjunction with the cumulative

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effects of grazing, with a sufficient degree of detail.

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Lassen 15 Project Environmental Assessment is not arbitrary,

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capricious, an abuse of discretion, or otherwise not in

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accordance with the law.

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summary judgment in favor of the Forest Service and against

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Conservation Congress on Conservation Congress’s first claim.

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5 U.S.C. § 706(2).

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The

The Court grants

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3.

Fifth Claim: Extraordinary Circumstances and the
Joseph Creek Project’s Categorical Exclusion

Conservation Congress’s fifth claim asserts that the Forest

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Service violated NEPA by failing to consider extraordinary

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circumstances that preclude the use of categorical exclusion for

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the Joseph Creek project.

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raised here is whether “extraordinary circumstances review,”

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required for categorical exclusion under NEPA regulations,

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applies to categorical exclusions permitted by the Health Forest

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Compl. at 16–17.

The main issue

Restoration Act, 16 U.S.C. § 6591 et seq.
Five years ago, Congress amended the Healthy Forests

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Restoration Act of 2003 to add a new type of categorical

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exclusion for projects that address qualifying insect and

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disease infestations on National Forest System lands.

16 U.S.C.

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§ 6591a, et al. (hereinafter, “Farm Bill Amendment”).

This

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statutory categorical exclusion contains different requirements

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and limitations from the categorical exclusion contained in

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NEPA’s implementing regulations.

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40 C.F.R. § 1508.4.

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regulations, the agency must “provide for extraordinary

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circumstances in which a normally excluded action may have a

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significant environmental effect.”

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Conservation Congress argues that this requirement similarly

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applies to categorical exclusion under the Health Forest

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Restoration Act.

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Compare 16 U.S.C. § 6591b with

To claim categorical exclusion under NEPA’s

40 C.F.R. § 1508.4.

The parties provided the Court with prior cases on this

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issue that reached different conclusions.

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Council v. Marten, No. 17-153-M-DWM, 2018 WL 6046472 (D. Mont.
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See Native Ecosystem

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Nov. 19, 2018); Greater Hells Canyon Council v. Stein, No. 2:17-

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CV-00843-SU, 2018 WL 3966289, at *8 (D. Or. June 11, 2018),

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report and recommendation adopted, No. 2:17-CV-00843-SU, 2018 WL

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3964801 (D. Or. Aug. 17, 2018); Ctr. for Biological Diversity v.

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Ilano, 261 F. Supp. 3d 1063, 1068–69 (E.D. Cal. 2017).

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reviewing these nonbinding opinions, the Court finds that Stein,

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and Marten which adopted Stein’s reasoning, provide a more

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thorough and better reasoned analysis than the assumption in

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Ilano.

After

See Ilano, 261 F. Supp. 3d at 1069 (“[T]his ruling will

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assume for purposes of analysis that [extraordinary

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circumstances] review was indeed required”).

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Stein reviewed the plain language of the Farm Bill

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Amendment and NEPA’s implementing regulations.

2018 WL 3966289,

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at *8 (noting the Supreme Court’s direction to “ordinarily

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resist reading words or elements into a statute that do not

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appear on its face.”).

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extraordinary circumstances review, while NEPA regulations limit

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extraordinary circumstances review to “procedures under this

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section” of the Code of Federal Regulations.

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§ 6591b with 40 C.F.R. § 1508.4.

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provides conditions for qualifying projects, § 6591b(b);

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limitations, § 6591b(c); and exclusions, § 6591b(d).

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subsections do not list extraordinary circumstances review as a

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necessary condition of or limitation for categorical exclusion.

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Conversely, other sections of the Healthy Forests Restoration

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Act expressly state a requirement for “extraordinary

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circumstances procedures” in order for an agency action to

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qualify for categorical exclusion.

The Farm Bill Amendment does not mention

Compare 16 U.S.C.

The Farm Bill Amendment

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These

16 U.S.C. § 6554(d).

Had

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Congress intended to impose an extraordinary circumstances

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requirement on statutory categorical exclusion, presumably the

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requirement would have been expressly stated as it is in other

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parts of the Health Forests Restoration Act.

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Amgen Inc., 137 S. Ct. 1664, 1677 (2017).

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See Sandoz Inc. v.

Accordingly, the Court agrees with the Forest Service’s

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interpretation of section 6591b statutory categorical exclusion.

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The Forest Service was not required to perform extraordinary

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circumstances review for a qualifying project under section

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6591b.

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Service and against Conservation Congress on Conservation

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Congress’s fifth claim.

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The Court grants summary judgment in favor of the Forest

4.

Sixth Claim: Cumulative Effects of the Joseph
Creek Project

Conservation Congress’s sixth claim alleges that the Forest

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Service violated NEPA by failing to evaluate and disclose the

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cumulative effects of the Joseph Creek Project in relation to

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the Lassen 15 Project.

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Compl. at 17–18.

The scope of an environmental impact assessment requires an

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agency consider “direct,” “indirect,” and “cumulative” impacts.

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40 C.F.R. § 1508.25.

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regulation applies only to environmental impact statements.”

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Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1096–97

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(9th Cir. 2013).

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proposed action fits within a categorical exclusion, full NEPA

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analysis is not required.”

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“application of section 1508.25’s requirements to categorical

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exclusions is inconsistent with the efficiencies that the

“By its plain language, however, this

The Ninth Circuit has determined that “where a

Id. at 1097 (finding that

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abbreviated categorical exclusion process provides.”).

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Here, the

Forest Service issued the Joseph Creek Project

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categorical exclusion pursuant to the Farm Bill Amendment, 16

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U.S.C. § 6591b, rather than NEPA’s regulatory categorical

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exclusion, 40 C.F.R. § 1508.4.

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Forest Service may issue a statutory categorical exclusion does

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not include a requirement that the documentation include a

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cumulative effects analysis.

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provided any sections of the applicable statute that provide

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The provisions under which the

Conservation Congress has not

otherwise.

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In the absence of a clear requirement that the Forest

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Service consider cumulative impacts in statutory categorical

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exclusion analysis, the Court declines to require such

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consideration.

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the Forest Service and against Conservation Congress on

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Conservation Congress’s sixth claim.

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5.

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The Court grants summary judgment in favor of

Seventh Claim: Joseph Creek Project’s Consistency
with the Forest Plan

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Conservation Congress’s seventh claim asserts that the

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Forest Service violated NEPA and the Forest Act because the

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decision memorandum for the Joseph Creek Project does not contain

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findings of consistency with the Forest Plan.

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Conservation Congress argues that the lack of express findings of

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consistency with the Forest Plan standards, see 36 C.F.R.

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§ 220.6(f)(4), renders the Forest Service’s determination

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arbitrary, capricious, or not in accordance with law.

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Summ. J., ECF No. 23, p. 24–25.

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///
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Compl. at 18–20.

Def. Mem.

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Here, the Court does not apply the requirements for

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regulatory categorical exclusions, 36 C.F.R. § 220.6(f)(4), but

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rather those for statutory categorical exclusions, 16 U.S.C.

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§ 6591b.

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decision memoranda include “[f]indings required by other laws

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such as, but not limited to findings of consistency with the

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forest land and resource management plan as required by the

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National Forest Management Act; or a public interest

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determination.”

Regulatory categorial exclusions from NEPA require that

36 C.F.R. § 220.6(f)(4).

Statutory categorical

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exclusions under the Farm Bill Amendment do not contain a similar

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requirement.

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activities . . . would be inconsistent with the applicable land

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and resource management plan,” however, are not covered by the

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statutory categorical exclusion.

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See 16 U.S.C. § 6591b.

Projects “in which

16 U.S.C. § 6591b(d)(4).

Conservation Congress’s arguments rely on the requirements

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for regulatory categorical exclusions.

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argued that the Joseph Creek Project is excluded from statutory

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categorical exclusion under subsection 6591b(d)(4), and the Court

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will not rule upon arguments that were not raised.

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if that argument had been raised, the administrative record does

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not support a finding of inconsistency.

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JC_000169–70, JC_000201–12, JC_000283–90, JC_000317–23,

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JC_000330—58, JC_000368–407, JC_000416–24, JC_000427–28.

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///

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///

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///

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///

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///
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The organization has not

Indeed, even

See Joseph Creek R. at

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The Court grants summary judgment in favor of the Forest

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Service and against Conservation Congress on Conservation

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Congress’s seventh claim.

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III.

ORDER

For the reasons set forth above, the Court DENIES

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Conservation Congress’s Motion for Summary Judgment and GRANTS

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the Forest Service’s Motion for Summary Judgment.

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IT IS SO ORDERED.
Dated: June 4, 2019

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