Idaho Conservation League v. Farnsworth et al

Filing 56

MEMORANDUM DECISION AND ORDER granting 23 Plaintiff's Motion for Summary Judgment; denying 28 Defendant's Motion for Summary Judgment. Plaintiff is granted the declaratory relief requested. This case is remanded to the Secretary of the Forest Service for actions consistent with this Order, and this case is CLOSED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

IDAHO CONSERVATION LEAGUE,
Plaintiff,
v.

Case No. 2:12-cv-00004-REB
MEMORANDUM DECISION AND
ORDER ON SUMMARY
JUDGMENT MOTIONS

UNITED STATES FOREST SERVICE,
et al.,
Defendants.

INTRODUCTION
Pending before the Court are cross motions for summary judgment (Dkts. 23 &
28), asserting legal issues appropriate for resolution on summary judgment. After an
earlier hearing upon the motions, the Court stayed the case to wait for the U.S. Supreme
Court’s decision on review of a Ninth Circuit Court of Appeals case involving a standing
issue similar to this case, Pacific Rivers Council v. U.S. Forest Service, 689 F.3d 1012
(9th Cir. 2012). See U.S. Forest Service, et al. v. Pacific Rivers Council, et al., No.
12-623, 133 S.Ct. 1582, 2013 WL 1091766 (U.S. Mar. 18, 2013). On June 17, 2013, the
Supreme Court vacated the opinion by the United States Court of Appeals for the Ninth
Circuit, and in remanding the case, directed the district court to dismiss it as moot in its

MEMORANDUM DECISION AND ORDER - 1

entirety. U.S. Forest Service v. Pacific Rivers Council, 133 S.Ct. 2843, 2013 WL
2922118 (U.S. Jun 17, 2013). See also Pacific Rivers Council v. U.S. Forest Service, 724
F.3d 1146, 1147 (9th Cir. 2013). Accordingly, the stay is lifted and the Court now enters
the following Order granting ICL’s Motion for Summary Judgment and denying
Defendants’ cross-motion.
BACKGROUND1
Plaintiff Idaho Conservation League (“ICL”) challenges a decision made by the
U.S. Forest Service and supervisors Mary Farnsworth and Maggie Pittman (collectively
“the Forest Service”) for a timber and fire management project (“Project”) in the Fern
Hardy Resource Area (“Fern Hardy”), located in the Coeur d’Alene River Ranger District
in the Idaho Panhandle National Forests (the “Panhandle”). ICL seeks declaratory relief
(1) stating that the Forest Service failed to comply with the environmental review
requirements of the Healthy Forest Restoration Act, and (2) “an injunction prohibiting
road building, timber extraction, and fire management activities until the Forest Service
complies with the law.” Pl.’s Mem., p. 1 (Dkt. 23-1).
ICL argues that the Project will affect a number of terrestrial and aquatic
ecosystems and species. Pl.’s Mem., p. 2 (Dkt. 23-1). The planned activities include
commercial timber harvest, prescribed burning, fuel breaks, vegetation management, road

1

The parties included more background information in their briefing, but the
Court states here only the facts necessary to decide the issues at hand.
MEMORANDUM DECISION AND ORDER - 2

construction, road improvement and reconditioning, and road maintenance.2 PI-75, EA3,
p. 2-2. These activities will occur on 2,493 acres of the 13,200 acre Fern Hardy area. PI
75, p. 2-2. The management plan for the Project emerged because conditions in the Fern
Hardy create a risk of uncontrolled fires that threaten homes, infrastructure (such as roads
and power lines), and natural resources. EA, pp. 3-2, 3-8.
The Healthy Forest Restoration Act (“HFRA”) was enacted in 2003 to “reduce
wildfire risk to communities, municipal water supplies, and other at-risk federal land” by
“[a]s soon as practicable” implementing “authorized hazardous fuel reduction projects.”
16 U.S.C. §§ 6501(1), 6512(a). In pursuit of that goal, in April 2011 the Forest Service
developed an Environmental Assessment for the Project in the Fern Hardy. EA, p. 1-3.
That assessment describes the Fern Hardy’s location as close to home sites, private lands,
the I-90 freeway corridor, and other community infrastructure. PI-75, EA, p. 1-3. The
Forest Service explained in the assessment that a severe wildfire in the area could result
in loss of lives, structures, and private land values, in addition to a loss of environmental

2

The proposed action alternative in the Environmental Assessment calls for the
Forest Service to: conduct prescribed burning of surface fuels like grass, brush, and small
conifers, EA at pp. 2-6 to 2-8; harvest timber to reduce the potential for fires and to
increase overall resistance to insects and disease, id. at 2-2 to 2-6; reforest 505 acres, id.
at 2-6; and construct fuel breaks through noncommercial thinning and pruning to reduce
surface and ladder fuels and to diminish the possibilities of fire near homes, structures,
private property, and access routes; and to give firefighters a space that they can defend
from wildfire, id. at 2-8.
3

“EA” refers to the Environmental Assessment from April 2011.

MEMORANDUM DECISION AND ORDER - 3

values such as forest cover, wildlife habitat, soil productivity, water quality, timber value,
and scenic quality. Id.
In the EA, the Forest Service states that its management plan for the Fern Hardy
Project was based on three objectives – to reduce hazardous fuels, develop sustainable
forest conditions, and restore and retain key ecosystem components. PI-75, EA, p. 1-3.
The Forest Service identified two alternatives for the Project in the EA: (1) take no action
or (2) or implement a plan that includes vegetation and road management. PI-75, EA, p.
2-2. The Forest Service’s road management plan includes building temporary and
permanent roads, and reconstructing, reconditioning, maintaining, and decommissioning
roads. The vegetation management plan includes commercial timber harvesting,
prescribed burns, fuel break development, and tree planting. PI-75, EA, p. 2-2. The Fern
Hardy Project is farther than 1.5 miles of the boundary of an at risk community. PI-PF81, p. D-7.
ICL contends in its pending motion that insufficient action alternatives were
considered by the Forest Service in creating the Fern Hardy Environmental Assessment.
The Forest Service takes the opposition position in making its own motion, and also
challenges ICL’s standing to bring this case. Accordingly, the Court decides here: (1)
whether ICL has standing to pursue this case, (2) whether the Forest Service was required
to include and analyze a second action alterative in the Fern Hardy Environmental
Assessment, and, if so, (3) whether the Forest Service adequately considered a second
action alternative.
MEMORANDUM DECISION AND ORDER - 4

THE FOREST SERVICE’S CROSS-MOTION FOR SUMMARY JUDGMENT
The Forest Service requests summary judgment in its favor on all issues raised by
ICL, but also asserts that ICL lacks standing to pursue this case. Because a ruling in
favor of the Forest Service on the standing issue would obviate the need to rule on other
matters, the Court first will decide the question of ICL’s standing.
A.

Evidence Considered in Determining Whether ICL has Standing
The parties disagree about whether Julie Dalsaso’s declaration in support of ICL’s

standing was timely submitted. The Dalsaso Declaration was filed with Plaintiff’s reply
brief on May 3, 2012. The Case Management Order (“CMO”), however, contains a
March 15, 2012 deadline to file “declarations or other evidence in support of [ICL’s]
Article III standing.” (Dkt. 24, p. 2).
ICL contends that the parties’ stipulation, presented to the Court in support of the
CMO, was not intended to foreclose additional evidence. ICL submitted an email
exchange between counsel in which ICL’s counsel committed to file the “standing”
declarations by March 15th. However, ICL qualified its intentions, saying that if “the
Forest Service raises standing arguments in its brief, we reserve our rights. . . to introduce
additional evidence related to standing.” Regan Declr., Ex. B-1, p. 1 (Dkt. 33-3).
Accordingly, there is an open question as to whether the parties had agreed there
would be no objection to a later-raised piece of evidence on standing. Of significance,
the Forest Service could have rejected ICL’s qualified position, but did not do so and in
the context, its silence is the equivalent of assent. Even so, because Plaintiff’s reply brief
MEMORANDUM DECISION AND ORDER - 5

also was intended to serve as a brief in response to the Forest Service’s Cross-Motion for
Summary Judgment, the Dalsaso Declaration was timely filed as an affidavit supporting
ICL’s response to the Forest Service’s motion, which first raised the standing issue. See
D. Idaho L. Civ. R. 7.1(c)(1) (providing that the “responding party shall serve and file
with the response brief any affidavits, declarations[,] . . . and other supporting materials
on which the responding party intends to rely”). For these reasons, the Court will
consider the Dalsaso Declaration on the standing issue.
B.

Standards of Law
Article III of the United States Constitution limits judicial power to deciding cases

and controversies. The standing doctrine requires a plaintiff to allege “a personal stake in
the outcome of the controversy . . . to warrant his invocation of federal-court
jurisdiction.” Warth v. Seldin, 442 U.S. 490, 498-99 (1975). A plaintiff must establish
that:
he is under threat of suffering “injury in fact” that is concrete
and particularized; the threat must be actual and imminent,
not conjectural or hypothetical; it must be fairly traceable to
the challenged action of the defendant; and it must be likely
that a favorable judicial decision will prevent or redress the
injury.
Jayne v. Sherman, 706 F.3d 994, 999 (9th Cir. 2013). See also Summers v. Earth Island
Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 1149 (2009). The burden, of course, is upon
ICL to demonstrate its standing to pursue its claims. Summers, 555 U.S. at 493.

MEMORANDUM DECISION AND ORDER - 6

The concrete harm requirement can be satisfied by an injury to “the recreational or
even the mere esthetic interests of the plaintiff.” Summers, 555 U.S. 493. The Ninth
Circuit has recognized that such an injury can be found in the testimony of a member of
an environmental group that he or she “had repeatedly visited an area affected by a
project, that he had concrete plans to do so again, and that his recreational or aesthetic
interests would be harmed if the project went forward without his having the opportunity
to appeal.” Wilderness Society, Inc. v. Rey, 622 F.3d 1251, 1256 (9th Cir. 2010). Further,
“[w]here the recreational use of a particular area has been extensive and in close
proximity to the plaintiff, an affiant’s expressed intention to continue using the land is
sufficiently concrete to underwrite an injury-in-fact.” Jayne, 706 F.3d 994, 999 (9th Cir.
2013) (citation and internal quotation marks omitted). The nexus is not entirely without
shape, however, as “a vague desire to return to the area ‘without any description of
concrete plans, or indeed any specification of when the some day will be’ does not
support a finding of actual or imminent injury.” Id.
C.

ICL has Established the Injury and Causation Elements of Standing
The Forest Service argues that ICL lacks standing because it “has failed to draw

any link between the Forest Service’s alleged failure to consider an additional alternative
and any likely future injury.” Cross-Mot. Summ. J., p. 10 (Dkt. 28-1). The template for
such an analysis drawn by the Supreme Court in Summers provides that “[w]hile
generalized harm to the forest or the environment will not alone support standing, if that
harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that
MEMORANDUM DECISION AND ORDER - 7

will suffice.” Summers, 555 U.S. at 494. Additionally, ICL “need not establish causation
with the degree of certainty that would be required for [it] to succeed on the merits, say,
of a tort claim. Rather, [it] need only establish “the ‘reasonable probability’ of the
challenged action’s threat to [its] concrete interest.” Hall v. Norton, 266 F.3d 969, 977
(9th Cir. 2001) (citation and internal quotation marks omitted); see also Center for Food
Safety v. Vilsack, 636 F.3d 1166, 1171–72 (9th Cir. 2011) (using the “reasonably
probable” standard). The Ninth Circuit, after Summers, addressed the issue in this
manner:
[Plaintiffs] err in suggesting that Summers rejected the ‘reasonable
probability’ standard. In Summers, the Supreme Court stated that to
seek injunctive relief, plaintiffs must be “under threat of suffering
‘injury in fact’ that is concrete and particularized; the threat must be
actual and imminent.” 129 S.Ct. at 1149. Yet, Summers reaffirmed
the unique nature of procedural injuries—namely, that a plaintiff
seeking to enforce procedures that protect his concrete interests may
do so “without meeting all the normal standards for redressability
and immediacy.” 129 S.Ct. at 1151 (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 572 n. 7, 112 S.Ct. 2130, 119 L.Ed.2d 351
(1992)); see also Lujan, 504 U.S. at 572 n. 7, 112 S.Ct. 2130
(explaining that “one living adjacent to the site for proposed
construction of a federally licensed dam has standing to challenge
the licensing agency’s failure to prepare an [EIS], even though he
cannot establish with any certainty that the statement will cause the
license to be withheld or altered, and even though the dam will not
be completed for many years”). The “reasonable probability”
standard derives from that principle, see Citizens for Better Forestry,
341 F.3d at 972, which Summers left unchanged, see, e.g., Friends of
Tims Ford v. TVA, 585 F.3d 955, 968 (6th Cir. 2009) (applying
“reasonable probability” standard post- Summers ).
Center for Food Safety v. Vilsack, 636 F.3d 1166, 1171–72 n.6 (9th Cir. 2011). See also
Barnes-Wallace v. City of San Diego, 704 F.3d 1067, 1076–78 (9th Cir. 2012) (explaining
MEMORANDUM DECISION AND ORDER - 8

that Summers “does not support reconsideration of our prior decision,” in part because
“[t]his is not a case where the plaintiffs have no plan to use the land in question”)
(citation and internal quotation marks omitted).
Here, information placed in the record by ICL suggests that the alleged failure by
the Forest Service to consider other action alternatives may cause harm to ICL members’
interests. Brad Smith says he has been harmed because the Forest Service did not
consider an alternative to use existing logging roads and spare old growth forest stands
from logging. Smith Declr., ¶ 21 (Dkt. 21). His declaration describes a visit to the Fern
Hardy and the signs of logging that he asserts will reduce his enjoyment of being in the
forest. Id. at ¶ 18. Irving Paul says similarly that he is aware of the consequences of
logging and road building in the Idaho Panhandle National Forest and that these activities
have reduced his enjoyment of the outdoors. Irving Declr., p. 4 (Dkt. 22).
The Court is satisfied that these statements of Mr. Paul and Mr. Smith can be
evidence of possible harm. However, to assert a concrete interest sufficient to
demonstrate the injury element of standing, the plaintiff organization must show more
than a “general intention” of its members to return to a national forest. Wilderness
Society, Inc. v. Rey, 622 F.3d 1251 (9th Cir. 2010). See, e.g., Central Sierra Env’tl Res.
Ctr. v. U.S. Forest Service, No. S–10–2172 KJM–AC, 2013 WL 77499, *4-5 (E.D.Cal.
Jan. 4, 2013) (“[e]nvironmental groups do not have standing to challenge actions that
affect only certain geographical areas when the groups do not set forth facts showing that
their members have aesthetic and environmental interests in those particular areas, as
MEMORANDUM DECISION AND ORDER - 9

opposed to broader areas . . . [b]ut the members’ declarations in this case list specific
roads and trails and areas they plan to visit that will be affected by the [challenged
project]”). To sustain standing on the basis of aesthetic and recreational injury, it would
be sufficient to show that plaintiff had “repeatedly visited an area affected by a project,
that he had concrete plans to do so again, and that his recreational or aesthetic interests
would be harmed if the project went forward . . . . [A] vague desire to return to the area
without any description of concrete plans, or indeed any specification of when the some
day will be does not support a finding of actual or imminent injury.” Wilderness Soc.,
Inc. v. Rey, 622 F.3d 1251, 1256 (9th Cir. 2010) (quotations omitted).
The Smith and Paul declarations may not demonstrate an extensive use of the Fern
Hardy area, but both contain assertions made under oath of at least one past visit to the
area and future intentions to use or view the Fern Hardy and surrounding areas in a
variety of ways. See Smith Declr., ¶¶ 18–19; Paul Declr., ¶¶ 5, 7, 9, 16. Ms. Dalsaso’s
declaration is yet stronger in that regard, as she states with more particularity that she has
visited the Fern Hardy and has plans to return to that area again.4 Dalsaso Declr., ¶ 5

4

“[E]nvironmental plaintiffs must allege that they will suffer harm by virtue of
their geographic proximity to and use of areas that will be affected by the [Government’s]
policy.” Citizens for Better Forestry v. U.S. Dept. of Agriculture, 341 F.3d 961, 971 (9th
Cir. 2003). This situation is different than that in Clapper v. Amnesty Intern. USA, 133
S.Ct. 1138 (2013). The question in Clapper was whether respondents have Article III
standing to seek prospective relief when they there is a “reasonable likelihood that their
communications will be acquired . . . at some point in the future.” Id. at 1142. This
“theory of future injury” was found “too speculative to satisfy the well-established
requirement that threatened injury must be ‘certainly impending.’” Id.
MEMORANDUM DECISION AND ORDER - 10

(Dkt. 29-1). She too avers that she has “seen the effects” of logging in the Idaho
Panhandle National Forest generally. She expects that such activities in the Fern Hardy
will have negative impacts similar to that she has seen elsewhere in the Panhandle, such
as decreased water quality and decreased aesthetics from activities such as road building.5
Id. at ¶ 6. See also Smith Declr., ¶ 14 (Dkt. 21) (Smith believes that “the project will
result in timber harvest in approximately 14 acres of old growth forest” and “will result in
the construction of temporary and permanent roads associated with logging”).
In comparison, the regulation at issue in Summers affected only small and widely
scattered parcels of land throughout the entire United States and the plaintiffs had not
shown any realistic likelihood they would come into contact with the impacted areas.
Here, the ICL members who submitted declarations live near and recreate in the
Panhandle. Dalsaso has regularly recreated in the Fern Hardy and “plan[s] on returning
to that area.” Id. at ¶ 5 (emphasis added).
Further, the Government Defendants conceded in the Summers case that an
affidavit was sufficient to establish standing as to a particular project (the Burnt Ridge
Project), where the plaintiff organization’s member stated he had repeatedly visited the

5

See, e.g., Idaho Conservation League v. Atlanta Gold Corp., 844 F.Supp.2d
1116, 1128-29, 2012 WL 38633, *8-9 (D.Idaho Jan. 9, 2012) (describing sufficiency of
ICL affidavits alleging actual injury from decision to avoid recreating in the area because
of the environmental problems caused by agency action/inaction). See also, e.g., Hall v.
Norton, 266 F.3d 969, 976 (9th Cir. 2001) (citing Friends of the Earth, Inc. v. Gaston
Copper Recycling Corp., 204 F.3d 149, 156 (4th Cir. 2000) (holding that plaintiff
adequately established injury where individual testified that his recreational use of a lake
was constrained by “fears of pollution from [the defendant’s] permit exceedances”)).
MEMORANDUM DECISION AND ORDER - 11

site, had imminent plans to do so again, and that his interests in viewing the flora and
fauna of the area would be harmed if the project went forward without incorporation of
the ideas he would have suggested to the Forest Service. Summers, 555 U.S. at 494.6 The
declarations submitted by ICL contain assertions that if the project goes forward as
planned, without considering another action alternative, it will harm esthetic and
recreational interests of ICL members. Two of the declarants assert they will see the Fern
Hardy area and be in the surrounding areas, and one of declarants recites a future
intention to visit the Fern Hardy. Additionally, the central issue in Summers was whether
the plaintiff environmental groups had “standing to challenge the regulations in the
absence of a live dispute over a concrete application of those regulations.” Summers, 555
U.S. at 490 (emphasis added). This case is not so inchoate as was the controversy in
Summers – rather, in this case the Forest Service has set forth a plan for the Panhandle
that includes destroying some vegetation, new logging, and constructing new roads.
Accordingly, ICL has sufficiently demonstrated the injury and causation elements
required for standing.

6

The affidavit did not establish standing for the entire case. Summers, 555 U.S. at
494. Although the plaintiffs’ case was initially tied to the Burnt Ridge Project, the district
court entered a preliminary injunction related to that project, and the parties later settled
that part of the dispute. Summers, 555 U.S. at 491. The Government then successfully
argued to the district court that, “with the Burnt Ridge dispute settled, and with no other
project before the court in which respondents were threatened with injury in fact, [the
plaintiff environmental groups] lacked standing to challenge the regulations; and that
absent a concrete dispute over a particular project a challenge to the regulations would
not be ripe.” Id. at 491-92 (emphasis added).
MEMORANDUM DECISION AND ORDER - 12

D.

ICL Has Shown the Redressability of its Asserted Injury
The Forest Service also contests an additional element of standing, arguing that

ICL cannot “show that a favorable resolution will likely remedy any threatened injury
from the [alleged] legal violation.” Cross-Mot. Summ. J., p. 1 (Dkt. 28-1). There is, to
be sure, testimony in the various declarations relevant to that question. For instance, Mr.
Smith believes he has been harmed because the Forest Service did not consider an action
alternative that included using existing logging roads and sparing old growth forest stands
from logging. Smith Declr., ¶ 21 (Dkt. 21). Mr. Smith says that ICL had suggested that
the Forest Service consider an action alternative that would use existing logging roads
and spare old growth forest stands from logging. Smith Declr., ¶ 21. Mr. Paul avers that
ICL members are concerned that the “ultimate project is more harmful to Forest resources
than is necessary for accomplishing the Forest Service’s goals,” hence their belief that the
Forest Service should consider another alternative to its proposed action. Paul Declr. ¶ 19
(Dkt. 22). And, each of the declarants describes the effects of logging on water quality,
increased number of and/or use of roads, and decreased enjoyment of the scenery. Paul
Declr., ¶¶ 11, 13-15; Smith Declr, ¶¶ 14-16; Dalsaso Declr., ¶¶ 6-7. Although broadly
stated, such alleged concerns (and the corollary proposition that such concerns would be
avoided or alleviated if changes to the Project were made) are sufficiently certain to
identify the fact of alleged harms and the protection from such injuries if the Plaintiff’s
recommendations were implemented in the Project planning.

MEMORANDUM DECISION AND ORDER - 13

Additionally, a procedural right afforded by Congress “can loosen the strictures of
the redressability prong of our standing inquiry.” Summers, 555 U.S. 496. In the
Summers case, that loosening allowed “standing [to exist] with regard to the Burnt Ridge
Project . . . despite the possibility that [the plaintiffs’] allegedly guaranteed right to
comment would not be successful in persuading the Forest Service to avoid impairment of
[the plaintiffs’] concrete interests.” Id. at 497 (emphasis added). See also Hall v. Norton,
266 F.3d at 977 (explaining that a procedural right reduces the plaintiff’s burden of
proving redressability). Accordingly, even though ICL may not ultimately persuade the
Forest Service to adopt any ICL proposed alternative action plan, ICL can still meet the
redressability requirement for standing. See Hall v. Norton, 266 F.3d 969, 975 (9th Cir.
2001) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 & n. 7 (1992) (“In the
case of a plaintiff ‘seeking to enforce a procedural requirement the disregard of which
could impair a separate concrete interest of their’s, the plaintiff can establish standing
‘without meeting all the normal standards for redressability and immediacy.’”)). ICL has
done so here.
E.

Conclusion: ICL Has Standing in This Case
The declarations submitted in this case identify the particular site tied to the

challenged conduct and connect that to an alleged future injury ICL members seek to
enjoin. Compare Summers, 555 U.S. at 495 (affiant for environmental group failed “to
allege that any particular timber sale or other project claimed to be unlawfully subject to
the regulations will impede a specific and concrete plan of [the affiant’s] to enjoy the
MEMORANDUM DECISION AND ORDER - 14

National Forests”); id. at 496 (although the affiant “does refer specifically to a series of
projects in the Allegheny National Forest that are subject to the challenged regulations . . .
[he] does not assert, however, any firm intention to visit their locations”). Accordingly,
the Court finds a sufficient connection between the planned activities and the alleged
harm to ICL members’ interests for ICL to establish standing to pursue this case.
ICL’S MOTION FOR SUMMARY JUDGMENT
ICL seeks summary judgment declaring that the Forest Service committed legal
errors by (1) failing to consider the mandated minimum number of alternatives required
by the Healthy Forest Restoration Act; and (2) misinterpreting the statutory minimum
number of alternatives as an upper limit on the number of alternatives that the Forest
Service may consider. Pl.’s Mem., p. 25 (Dkt. 23-1). ICL also seeks an injunction
prohibiting road construction, timber extraction, and fire maintenance activities in the
Fern Hardy until an additional action alternative is considered. Id.
The Forest Service seeks summary judgment on these issues and asks that the
Court deny ICL’s Motion for Summary Judgment.
A.

Statutory Framework
The Forest Service manages the National Forests pursuant to duties and

obligations established under the Forest Service Organic Act of 1897, 16 U.S.C. §§ 472482, 551, the Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528-531, and the
National Forest Management Act of 1976 (“NFMA”), 16 U.S.C. §§ 1600-1614. The
Multi-Use Sustained-Yield Act of 1960 states that “[i]t is the policy of the Congress that
MEMORANDUM DECISION AND ORDER - 15

the national forests are established and shall be administered for outdoor recreation,
range, timber, watershed, and wildlife and fish purposes.” 16 U.S.C. § 528. The NFMA
also requires that the national forests shall be managed to “provide for multiple use and
sustained yield of the products and services obtained there . . . and [must] include
coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and
wilderness[.]” 16 U.S.C. § 1604(e)(1).
The National Environmental Policy Act (“NEPA”) was enacted to ensure that the
federal government makes major decisions significantly affecting the environment only
after considering the impacts of those decisions and exploring possible alternatives. 42
U.S.C. §§ 4321, 4331; 40 C.F.R. § 1501.1. NEPA establishes procedures to ensure that
federal agencies take a “hard look” at the environmental consequences of their proposed
action in advance of a final decision. Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 350-51 (1989); Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519,
558 (1978). NEPA cases are reviewable under the Administrative Procedures Act
(“APA”), 4 U.S.C. §§ 701-706. Lujan v. Wildlife Fed’n, 497 U.S. 871, 882-83 (1990);
Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1087 (9th Cir. 2003).
The Healthy Forests Restoration Act, 16 U.S.C. §§ 6501 et seq., directs the Forest
Service, in a manner consistent with NEPA requirements, to take action to “reduce
wildfire risk” and “enhance efforts to protect watersheds and address threats to forest and
rangeland health.” Id. §§ 6501(1), (3), 6514(a)(1). Specifically, the Forest Service is
required “[a]s soon as practicable” to implement an “authorized hazardous fuel reduction
MEMORANDUM DECISION AND ORDER - 16

project[ ]” on federal land where “the existence of an epidemic of disease or insects, or
the presence of such an epidemic on immediately adjacent land and the imminent risk it
will spread, poses a significant threat to an ecosystem component, or forest or rangeland
resource.” Id. § 6512(a)(4). HFRA requires the Forest Service to conduct fuel reduction
projects in accord with NEPA and other applicable laws, except in certain circumstances
not at issue here. 16 U.S.C. §6514(a). HFRA expedites normal notice and comment
procedures, but still requires the Forest Service to prepare either an environmental impact
statement or an environmental assessment for each hazardous fuel reduction project.
Decker v. U.S. Forest Serv., No. 09–cv–02675–PAB–CBS, 2011 WL 334451 (D. Colo.
Jan. 31, 2011); 16 U.S.C. §6514(b).
B.

Standard of Law
Summary judgment is appropriate when there is no genuine dispute of material

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.
In cases asserting NEPA and NFMA violations, the judicial review provisions of the
Administrative Procedures Act (“APA”), 5 U.S.C. § 701, et seq., apply. Native
Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir. 2002); Native Ecosystems
Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005). Under the APA, agency
action may set aside only if it was “arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with the law” or was adopted “without observance of
procedure required by law.” 5 U.S.C. § 706(2)(A), (D).

MEMORANDUM DECISION AND ORDER - 17

C.

HFRA Sets the Minimum Number of Action Alternatives to Consider
and the Forest Service Did Not Meet that Minimum
Here, the Forest Service analyzed a no-action alternative and one action alternative

in the Environmental Assessment (“EA”). ICL argues that the Forest Service should have
considered an additional action alternative for the Fern Hardy Project.7 The Forest
Service responds that HFRA did not require it to consider an additional action alternative
and, even if it did, that was done during the scoping phase of project planning. Both
parties agree that a “no-action alternative” is not considered an “action alternative” under
NEPA or HFRA. Cross-Mot. Summ. J., p. 20, n.4 (Dkt. 28-1); Defs.’ Reply, p. 8, n.1
(Dkt. 32).
1.

The number of action alternatives required

The Fern Hardy Project is located within a wildland-urban interface. At issue in
this case are the following subsections of HFRA:
(c) Consideration of alternatives
(1) In general

7

Compare Wildwest Institute v. Bull, 468 F.Supp.2d 1234, 1240 (D.Mont. 2006)
(describing that the Forest Service analyzed three alternatives for an HFRA project – a no
action and two action alternatives); Wildwest Institute v. Bull, 547 F.3d 1162, 1166 (9th
Cir. 2008) (explaining, in a background section not relevant to the holding of the case,
that HFRA required the Forest Service “to ‘study, develop, and describe the proposed
agency action; the alternative of no action; and an additional action alternative,’ if that
alternative ‘is proposed during scoping or the collaborative process . . . and meets the
purpose and need of the project’”, and noting that the Forest Service had “considered: (1)
a no-action alternative (‘Alternative 1’); (2) its preferred alternative (‘Alternative 2’); and
(3) an alternative proposed by [various conservation groups] (‘Alternative 3’) (quoting16
U.S.C. § 6514(c)(1)).
MEMORANDUM DECISION AND ORDER - 18

Except as provided in subsection (d), in the environmental
assessment or environmental impact statement prepared under
subsection (b), the Secretary shall study, develop, and
describe-(A) the proposed agency action;
(B) the alternative of no action; and
(C) an additional action alternative, if the additional
alternative-(i) is proposed during scoping or the
collaborative process under subsection (f); and
(ii) meets the purpose and need of the project, in
accordance with regulations promulgated by the
Council on Environmental Quality.
However, the statute also provides for an “[a]lternative analysis process for
projects in wildland-urban interface.” 16 U.S.C. § 6514(d)(1). For “an authorized
hazardous fuel reduction project that is proposed to be conducted in the wildland-urban
interface, the Secretary is not required to study, develop, or describe more than the
proposed agency action and 1 action alternative in the environmental assessment or
environmental impact statement.” 16 U.S.C. § 6514(d)(1) (emphases added). This is in
contrast to the situation in which “an authorized hazardous fuel reduction project
proposed to be conducted in the wildland-urban interface is located no further than 1 ½
miles from the boundary of an at-risk community.” 16 U.S.C. § 6514(d)(2). In that
circumstance, “the Secretary is not required to study, develop, or describe any alternative
to the proposed agency action in the environmental assessment or environmental impact
statement prepared pursuant to [NEPA].” Id. (emphases added).

MEMORANDUM DECISION AND ORDER - 19

ICL challenges the environmental analysis the Forest Service conducted for areas
within the wildland-urban interface, but more than 1.5 miles from an at-risk community.
Compl. ¶¶ 78-83. The Forest Service agrees that subsection 6514(d)(1) applies to its
responsibilities in that regard because the Fern Hardy “Project includes activities farther
than 1.5 miles from the boundary of an at-risk community.” Cross-Mot. Summ. J., pp.
17-18 n.3 (Dkt. 28-1) (citing DN-78).
However, the Forest Service contends in this litigation that it can comply with
HFRA and NEPA “either by analyzing the no-action alternative [and] one action
alternative or by analyzing a no-action alternative and two action alternatives.” See, e.g.,
Defs.’ Reply, p. 7 (Dkt. 32). ICL disagrees, arguing that subsection (d)(1) requires
consideration of two action alternatives.
In interpreting a statute, the starting point is the plain language. United States v.
Williams, 659 F.3d 1223, 1225 (9th Cir. 2011). The Court should “examine not only the
specific provision at issue, but also the structure of the statute as a whole, including its
object and policy.” Id. However, “[i]f the plain meaning of the statute is unambiguous,
that meaning is controlling and we need not examine legislative history as an aide to
interpretation unless ‘the legislative history clearly indicates that Congress meant
something other than what it said.’” Id. (quoting Carson Harbor Vill., Ltd. v. Unocal

8

“For areas within the [wildland urban interface] but farther than 1.5 miles of the
boundary of an at-risk community [which is the situation with the Fern Hardy project],
the Forest Service is not required to analyze more than the proposed action and one
additional action alternative.” PF-PI-81 at DN-7 (emphasis in original).
MEMORANDUM DECISION AND ORDER - 20

Corp., 270 F.3d 863, 877 (9th Cir. 2001) (en banc)). Conversely, “[i]f the statutory
language is ambiguous, then we consult legislative history.” Id. The Forest Service
agrees that the pertinent statute “is unambiguous”. Cross-Mot. Summ. J., p. 19 (Dkt.
28-1)
The Court also finds the statute to be unambiguous, and therefore will draw upon
its plain meaning. HFRA is written to require fewer alternatives when planned activities
are within 1.5 miles of an at risk community, because one purpose of the Act is to protect
those communities from wildfires. See 16 U.S.C. § 6514(d)(2) (providing that “if an
authorized hazardous fuel reduction project proposed to be conducted in the
wildland-urban interface is located no further than 1 ½ miles from the boundary of an
at-risk community, the Secretary is not required to study, develop, or describe any
alternative to the proposed agency action in the environmental assessment or
environmental impact statement”) (emphases added). However, when the activities are
outside of that area, as they are here, more must be considered. The words “more than”
as used in the sentence: “the Secretary is not required to study, develop, or describe more
than the proposed agency action and 1 action alternative” set a minimum requirement
which the Forest Service must meet, and which the Forest Service may (but is not
required to) exceed. There is no room for reading such a requirement in the alternative,
as the Forest Service contends. Thus, the Forest Service is required to consider at least
two action alternatives, but need not consider more. Any other interpretation of

MEMORANDUM DECISION AND ORDER - 21

Subsection 6514(d)(1) would render meaningless Subsection 6514(d)(2), which provides
for a lesser requirement of considering only the proposed agency action.
Although HFRA incorporates NEPA, the requirements under HFRA about the
number of alternatives the agency must consider differs from NEPA, which may require
the Forest Service to analyze up to eight, nine, or ten alternatives. See Cross-Mot. Summ.
J., pp. 16-17 (Dkt. 28-1) (collecting cases). HFRA’s lesser requirements hasten the pace
of notice and comment procedures so that projects can be put in place expeditiously to
minimize wildfire risks.9 Even so, although there is authority stating that NEPA “does
not impose a numerical floor on alternatives to be considered,” the plain reading of the
HRFA does require a minimum number in some circumstances. Compare Native
Ecosystems Council v. U.S. Forest Service, 428 F.3d 1233, 1246 (9th Cir. 2005) (“To the
extent that Native Ecosystems is complaining that having only two final alternatives – no
action and a preferred alternative – violates the regulatory scheme, a plain reading of the
regulations dooms that argument. So long as ‘all reasonable alternatives’ have been
considered and an appropriate explanation is provided as to why an alternative was
eliminated, the regulatory requirement is satisfied.”).

9

There is an inescapable anomaly created by this lawsuit, where the Court is
construing a Congressional act intended to expedite Forest Service decision-making in the
setting of a lawsuit which by its very nature is often protracted and antithetical to any sort
of expedited result, particularly in an overburdened judicial docket. However, the Forest
Service concreted such a path by its interpretation of the relevant provisions of HFRA at
issue in this case.
MEMORANDUM DECISION AND ORDER - 22

2.

Whether the Forest Service Considered Two Action Alternatives

The Forest Service argues in the alternative that even if it was required by HFRA
to consider two action alternatives, it met that requirement by “studying, developing, and
describing the Scoping Alternative in the EA.” Defs.’ Reply, p. 10 (Dkt. 32). “Scoping”
is the first phase of the NEPA process and the information that comes out of the scoping
phase is used to determine the scope of the environmental assessment. See 40 CFR §
1502.9 (“Draft environmental impact statements shall be prepared in accordance with the
scope decided upon in the scoping process.”). The Forest Service argues that it should be
allowed to rely upon (or even be “credited” for) an additional action alternative on
information and analysis generated during the scoping process when it summarizes that
analysis in an environmental assessment. Defs.’ Reply, p. 10 (Dkt. 32). The Forest
Service refers to the EA’s discussion of the scoping process and revisions to the agency’s
initial proposed action in this case as “the Scoping Alternative”.
The EA does mention alternatives to the Forest Service’s initial plan that were
considered during the scoping phase, and the EA includes statements reflecting the Forest
Service’s changes to its initial plan.10 However, only two alternatives are identified in the
EA – the no-action alternative and the proposed action plan. PI-75, EA, p. 2-2.

10

In addressing the comments ICL submitted during the scoping process, the EA
describes how the Forest Service modified its initial proposed action based on comments
made during the scoping process. See PI-75, EA, p. 2-28. Also in the EA is a section
titled “Alternatives Considered But Eliminated” and a chart on page 2-29 comparing the
activities proposed prior to and after the scoping process (which resulted in a reduction of
the planned activities).
MEMORANDUM DECISION AND ORDER - 23

Significantly, the EA states that only “[o]ne alternative to the Proposed Action was
considered in detail, the No Action Alternative” and that “[t]his range of alternatives is
consistent with the requirements under HFRA.” EA, p. 2-1. Moreover, the Forest
Service interpreted HFRA as dictating an upper limit on the number of alternatives it
could and did consider.11 As described above, however, the Forest Service is mistaken in
its view that “this range of alternatives is consistent” with HFRA requirements. But, as a
result, the Forest Service constructed the EA to analyze only the proposed action and the
no-action alternative, without recognizing that it was authorized by the statute to analyze
another action alternative or that there was a need to do so.
Although many agency decisions are entitled to deference, when a decision is
based on an error of law the agency is not properly exercising its discretion.12 That is the

11

See, e.g., PF-PI-44, p. 4 (Regional Office Response to Jonathan Oppenheimer
Objection: “[T]he Forest Service is not required to analyze more than the proposed action
and one additional action alternative (Section 104(d)(1)). This section of HFRA is setting
the upper limit for the number of alternatives required under HFRA.”); PF-PI-81, Att. A,
p. A-5 (Decision Notice: “Two alternatives were fully analyzed for disclosure in the EA:
the No-Action Alternative (taking no action at this time and providing a baseline for
comparative analysis of effects) and the Proposed-Action Alternative as modified (the
agency’s Selected Alternative). The range of alternatives is consistent with the
requirements under HFRA. . . . [Subsection (d)(1)] of HFRA sets the upper limit for the
number of alternatives required under HFRA.”).
12

Although the APA’s arbitrary and capricious standard is deferential, an
agency’s decision may violate that standard if the agency “has relied on factors which
Congress had not intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it would not be ascribed to a difference in
view or the product of agency expertise.” Jones v. National Marine Fisheries Serv., 741
(continued...)
MEMORANDUM DECISION AND ORDER - 24

product of the Forest Service’s actions in this case. The Forest Service could not properly
exercise discretion in a setting where it viewed the statute as limiting it to consideration
of only the no-action and proposed action alternatives. See, e.g., Transitional Hospitals
Corp. of Louisiana, Inc. v. Shalala, 222 F.3d 1019, 1029 (D.C. Cir. 2000) (finding that
while the agency had discretion, the agency erroneously interpreted that law to find that it
did not have discretion and this interpretation invalidated the decision because discretion
must be exercised by someone who realizes she possesses it).
Additionally, HFRA requires that the alternatives be studied, developed, and
described in the environmental assessment.13 The EA identifies only that the Forest
Service arrived at the final proposed action alternative. There is a short description of
some of the changes made to the original plan through the scoping process, but the EA
does not fully study or develop the “Scoping Alternative”. In contrast, the EA does
compare and contrast in detail the Forest Service’s proposed action and the no action

12

(...continued)
F.3d 989, 996 (9th Cir. 2013) (internal quotations and citation omitted). See also
Yepes-Prado v. U.S. I.N.S., 10 F.3d 1363, 1366 (9th Cir. 1993) (explaining that “an error
of law also constitutes an abuse of discretion”).
13

Both NEPA and HFRA contain the “study, develop, and describe” language.
Compare 42 U.S.C. § 4332(E) with 16 U.S.C. § 6514.
MEMORANDUM DECISION AND ORDER - 25

alternative, including the environmental impacts of those two alternatives.14 See Native
Ecosystems Council v. U.S. Forest Service, 428 F.3d 1233, 1245 (9th Cir. 2005) (quoting
40 C.F.R. § 1508.9(b) (2000) (explaining that NEPA requires “brief discussions of the
need for the proposal, of alternatives as required by [42 U.S.C. § 4332(2)(E)], [and] of the
environmental impacts of the proposed action and alternatives”) (emphasis added)).
The Forest Service admits that “[b]ecause the modified Proposed Alternative had
evolved beyond the initial Scoping Alternative, the Forest Service did not analyze the
Scoping Alternative in detail.” Cross-Mot. Summ. J., p.7 (Dkt. 28-1) (citing DN-7). But
the Forest Services argues that it was not required to consider “the Scoping Alternative”
in detail because “it provided no benefits beyond the Proposed [Action] Alternative” in
the EA. Cross-Mot. Summ. J., p. 21 (Dkt. 28-1). That argument falls short, as “NEPA
requires that alternatives . . . be given full and meaningful consideration.” Native
Ecosystems Council, 428 F.3d at 1245 (citation and internal quotation marks omitted).

14

For example, in Chapter 3 of the EA (which considers “[e]nvironmental
[c]onsequences”), the Forest Service compared only “Alternative 1—No Action” with
“Alternative 2—Proposed Action.” EA at p. 2-2; see also EA at pp. 3-19 – 3-26
(contrasting effects related to fire and fuels under the no action and proposed action
alternatives); id. at pp. 3-48 – 3-64 (contrasting effects related to forest health and
vegetation under the no action and proposed action alternative); id. at pp. 3-98 – 3-104
(contrasting environmental effects related to aquatic resources and fisheries under the no
action and proposed action alternative); id. at pp. 3-127 – 3-142 (contrasting
environmental effects related to aquatic resources and fisheries under the no action and
proposed action alternative); id. at pp. 3-161 – 3-219 (contrasting effects related to
wildlife fisheries under the no action and proposed action alternative). And, as ICL
points out, the Forest Service similarly compared the no action and proposed action
alternative for issues involving threatened, endangered, and sensitive plants; noxious
weeds; and scenery. See id. at Chapter 3.
MEMORANDUM DECISION AND ORDER - 26

It is correct, as the Forest Service describes, that “an agency’s obligation to
consider alternatives under an EA is a lesser one than under an EIS. In rejecting any
alternatives, the agency must only include ‘brief discussions of the need for the proposal,
of alternatives required by [42 U.S.C. § 4332(2)(E)], of the environmental impacts of the
proposed action and alternatives, and a listing of agencies and persons consulted.’”
Native Ecosystems Council, 428 F.3d at 1246-47 (quoting 40 C.F.R. § 1508.9(b) (2000)).
The EA here, however, did not discuss all or even most of the environmental impacts of
the initial action alterative proposed in the scoping process (i.e., the “Scoping
Alternative”). Instead, the “consideration” was upon the proposed action alternative, with
a follow-up statement that only “one alternative to the Proposed Action was considered in
detail, the No-Action Alternative”. EA, p. 2-1. In that setting, it is inescapable that the
Forest Service’s consideration of the “Scoping Alternative’s” effects by discussing some
of the effects of the “Scoping Alterative” and noting some of the common and differing
effects of the Scoping and Proposed Alternatives, however well intentioned, is not
enough. See, e.g., EA, pp. 2-28–2-30. Accordingly, this case is remanded for the Forest
Service to properly consider an additional action alternative in the EA, understanding that
it has discretion to do so. See Alaska Trojan Partnership v. Gutierrez, 425 F.3d 620, 633
(9th Cir. 2005) (“Generally, when an agency commits an error of law, this court remands
to the agency to reconsider its decision as required by law.”).

MEMORANDUM DECISION AND ORDER - 27

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Plaintiff’s Motion for Summary Judgment (Dkt. 23) is GRANTED and

Plaintiff is granted the declaratory relief requested, as set forth in the Judgment filed with
this Memorandum Decision and Order.
2)

Defendant’s Cross-Motion for Summary Judgment (Dkt. 28) is DENIED.

This case is remanded to the Secretary of the Forest Service for actions consistent with
this Order, and this case is CLOSED.
DATED: March 10, 2014

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 28