Bark v. Northrop et al
Filing
74
OPINION & ORDER: The Court concludes that the Forest Service has not violated NFMA or NEPA. Therefore, Plaintiffs motion 51 is denied, Defendants motion 57 is granted, and Defendant-Intervenors motion 60 is granted. See 30-page opinion & order attached. Signed on 4/11/2014 by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BARK,
No. 3:13-cv-01267-HZ
Plaintiff,
OPINION & ORDER
v.
LISA NORTHROP, Forest Supervisor,
of the Mt. Hood National Forest, and
U.S. FOREST SERVICE, a federal agency,
Defendants,
and
INTERFOR, U.S., Inc.,
Defendant-Intervenor.
David H. Becker
Law Office of David H. Becker, LLC
833 SE Main Street #302
Portland, OR 97214
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1 - OPINION & ORDER
Brenna B. Bell
Bark
PO Box 12065
Portland, OR 97212
Attorneys for Plaintiff
Beverly F. Li
U.S. Department of Justice
Environment & Natural Resources Division
601 D Street, NW
PO Box 7611
Washington, DC 20044
Attorney for Defendants
Robert L. Molinelli
Scott W. Horngren
American Forest Resource Council
5100 SW Macadam, Suite 350
Portland, OR 97239
Attorneys for Defendant-Intervenor
HERNÁNDEZ, District Judge:
Plaintiff Bark, a non-profit organization, brings this action against Defendants U.S.
Forest Service and Lisa Northrop, forest supervisor of the Mt. Hood National Forest (collectively
“Forest Service”). Plaintiff claims that the Forest Service violated the National Environmental
Policy Act (NEPA) and the National Forest Management Act (NFMA) in approving the Jazz
Thinning project in the Mt. Hood National Forest. Interfor, U.S., Inc. has intervened as a
defendant.
Plaintiff claims that the Forest Service’s environmental assessment (EA) violates NFMA.
Specifically, Plaintiff contends that the EA improperly exempts compliance with soil protection
standards, does not comply with Aquatic Conservation Strategy (ACS) objectives, and does not
comply with the Best Management Practices (BMP) of the Mt. Hood Forest Plan. Plaintiff
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further claims that the EA violates NEPA because the EA does not adequately evaluate the
impacts of rebuilding decommissioned roads, soil productivity, or the spread of invasive species.
Additionally, Plaintiff asserts that the Forest Service violated NEPA by failing to consider a
sufficient number of alternatives and failing to prepare and environmental impact statement
(EIS).
Plaintiff moved for summary judgment, and the Forest Service and Interfor cross-moved.
Oral argument on the motions was held on March 7, 2014. In reviewing the Forest Service’s
actions, I find that the Forest Service has not violated NFMA or NEPA. Therefore, Plaintiff’s
motion [51] is denied, Defendants’ motion [57] is granted, and Defendant-Intervenor’s motion
[60] is granted.
BACKGROUND
In March 2013, the Forest Service issued a Decision Notice and a Finding of No
Significant Impact (FONSI) for the Jazz Thinning project. Revised Admin. R. (AR) 2124621264. 1 The Jazz project area is located in the Collawash Watershed, a tributary of the
Clackamas River, in the Mt. Hood National Forest. AR 20951, 21246. The Forest Service
proposed thinning approximately 2,053 acres of plantations that are between 30 and 60 years
old. 2 AR 20967. The average tree size in the plantations is one foot in diameter. AR 21246.
These plantations primarily originated after clearcut harvesting. AR 21247. The trees were
planted closely together with the understanding that over time, density management practices
would give the trees sufficient space to grow. AR 21248.
1
In August 2012, the Forest Service issued a Decision Notice, but withdrew the decision because
some issues warranted further investigation. AR 21246.
2
The thinning would actually affect 1,588 acres when stream protection buffers and such are
taken into account. AR 20967.
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The purpose of the Jazz project is to increase the health and growth of trees, enhance the
diversity within the plantations, and provide timber to the local economy. AR 21001. The
project involves variable density thinning methods to create skips, gaps, heavy thins, and snags.
Id. The project requires repairing 67 miles of road, constructing 11.5 miles of temporary roads
on existing road alignments, and construction of 0.4 miles of new temporary roads. AR 21250.
The temporary roads would be decommissioned upon completion of the project. AR 21001.
In April 2013, Bark appealed the EA and Decision Notice to the Regional Forester. AR
21538. One month later, the Regional Forester affirmed the EA and Decision Notice and denied
Bark’s appeal. AR 21634. Bark filed this lawsuit soon after in July 2013. In September 2013,
the Forest Service awarded Interfor the Bass and Drum stewardship contracts to implement the
Jazz project. AR 21668-22133. Interfor was allowed to intervene in this matter as a defendant.
Dec. 12, 2013 Order [45].
STANDARDS
I.
Standard of Review
The parties have filed cross-motions for summary judgment under Federal Rule of Civil
Procedure 56. The legal standards for summary judgment motions are “inconsistent with the
standards for judicial review of agency action” under the Administrative Procedure Act (APA).
Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579 (10th Cir. 1994). Nonetheless, the
Ninth Circuit endorsed summary judgment motions as “‘an appropriate mechanism for deciding
the legal question of whether the agency could reasonably have found the facts as it did.’” City
& County of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 1997) (quoting
Occidental Eng’g Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985)). I consider “summary
judgment” to be only a convenient label for the judicial review of challenged agency actions.
4 - OPINION & ORDER
This court’s authority to review the actions of the Forest Service concerning the Jazz
project derives from the APA, 5 U.S.C. § 706. The scope of judicial review under § 706 is
narrow, and a court must uphold an agency’s action unless it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Id. at § 706(2)(A).
An agency’s decision is arbitrary and capricious “only if the agency relied on factors
Congress did not intend it to consider, ‘entirely failed to consider an important aspect of the
problem,’ or offered an explanation ‘that runs counter to the evidence before the agency or is so
implausible that it could not be ascribed to a difference in view or the product of agency
expertise.’” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (quoting
Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1157 (9th Cir. 2006)). If the agency
“considered the relevant factors and articulated a rational connection between the facts found and
the choice made,” the court must uphold the agency’s action. Balt. Gas & Elec. Co. v. Natural
Res. Def. Council, Inc., 462 U.S. 87, 105 (1983); see also City of Sausalito v. O'Neill, 386 F.3d
1186, 1206 (9th Cir. 2004).
Moreover, the court generally must be “at its most deferential” when reviewing scientific
judgments and technical analyses within the agency’s expertise. See Balt. Gas & Elec. Co., 462
U.S. at 103. It should not “act as a panel of scientists that instructs the [agency]…, chooses
among scientific studies…, and orders the agency to explain every possible scientific
uncertainty.” Lands Council, 537 F.3d at 988. The court should also “conduct a ‘particularly
deferential review’ of an ‘agency’s predictive judgments about areas that are within the agency’s
field of discretion and expertise…as long as they are reasonable.’” Id. at 993 (quoting Earthlink,
Inc. v. FCC, 373 U.S. App. D.C. 202, 462 F.3d 1, 12 (D.C. Cir. 2006)). And “[w]hen specialists
express conflicting views, an agency must have discretion to rely on the reasonable opinions of
5 - OPINION & ORDER
its own qualified experts even if, as an original matter, a court might find contrary views more
persuasive.” Id. at 1000 (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989)).
II.
Substantive Standards
The governing law in this case includes the National Environmental Policy Act of 1969
(NEPA), 42 U.S.C. § 4321-4370f, and the National Forest Management Act (NFMA), 16 U.S.C.
§§ 1600 et seq.
A.
National Environmental Policy Act
NEPA has two principal aims. Baltimore Gas & Elec. Co. v. Natural Resources Defense
Council, 462 U.S. 87, 97, 103 S. Ct. 2246, 76 L. Ed. 2d 437 (1983). First, NEPA requires
government agencies to “consider every significant aspect of the environmental impact of a
proposed action.” Id. (internal quotation marks omitted). “Second, NEPA mandates that
government agencies inform the public of the potential environmental impacts of proposed
actions and explain how their decisions address those impacts.” Citizens Committee to Save Our
Canyons v. United States Forest Service, 297 F.3d 1012, 1021 (10th Cir. 2002).
“NEPA is a procedural statute that does not ‘mandate particular results but simply
provides the necessary process to insure that federal agencies take a hard look at the
environmental consequences of their actions.’” High Sierra Hikers Ass’n v. Blackwell, 390 F.3d
630, 639-40 (9th Cir. 2004) (internal citation omitted). To comply with NEPA, federal agencies
must prepare an Environmental Impact Statement (EIS) for all “major Federal actions
significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C).
A federal agency initially “may prepare an Environmental Assessment (EA) to determine
whether the environmental impact of the proposed action is significant enough to warrant an
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EIS.” High Sierra Hikers Ass’n, 390 F.3d at 630, 639-40. An EA is “a concise public
document” that should:
(1) Briefly provide sufficient evidence and analysis for determining whether to
prepare an environmental impact statement or a finding of no significant impact;
(2) Aid an agency’s compliance with [NEPA] when no environmental impact
statement is necessary;
(3) Facilitate preparation of [an EIS] when one is necessary.
40 C.F.R. § 1508.9(a)(1-3).
“An EA must include ‘brief discussions’ of the need for the [federal action], of
reasonable alternatives, and of the anticipated environmental impacts.” Hapner v. Tidwell, 621
F.3d 1239, 1244 (9th Cir. 2010). See also 40 C.F.R. § 1508.9(b). An agency must then prepare
an EIS “if substantial questions are raised as to whether a project may cause significant
degradation of some human environmental factor.” Cal. Trout v. F.E.R.C., 572 F.3d 1003, 1016
(9th Cir. 2009). An EA need not meet all the requirements of an EIS, but “it must be ‘sufficient
to establish the reasonableness of th[e] decision’ not to prepare an EIS.” Ctr. for Biological
Diversity v. Nat’l Hwy Traffic Safety Admin., 538 F.3d 1172, 1215 (9th Cir. 2008) (internal
citations omitted).
B.
National Forest Management Act
NFMA requires the Forest Service to create a comprehensive Land Resources
Management Plan, also known as a Forest Plan, for each national forest. Lands Council, 395
F.3d at 1033. NFMA prohibits any site-specific activities that are inconsistent with the Forest
Plan. Id. Unlike NEPA, which is purely procedural, NFMA also imposes substantive constraints
on management of forest lands, such as a requirement to insure biological diversity. Native
Ecosystems Council, 304 F.3d at 898.
7 - OPINION & ORDER
The NFMA and its implementing regulations subject forest management to two stages of
administrative decision making. At the first stage, the Forest Service is required to develop a
Land and Resource Management Plan (“LRMP” or “Forest Plan”), which sets forth a broad,
long-term planning document for an entire national forest. At the second stage, the Forest
Service must approve or deny individual, site-specific projects. These individual projects must
be consistent with the Forest Plan. Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88
F.3d 754, 757 (9th Cir. 1996).
DISCUSSION
Plaintiff raises several challenges under both NFMA and NEPA.
I.
NFMA
There are two forest plans involved in this case—the Northwest Forest Plan and the Mt.
Hood Forest Plan (aka the Forest Plan). AR 20960. Plaintiff raises three NFMA-based
arguments concerning the Forest Service’s EA and Decision Notice for the Jazz project. Plaintiff
argues that the Decision Notice does not comply with (1) the Mt. Hood Forest Plan’s soil
protection standards, (2) the Northwest Forest Plan’s Aquatic Conservation Strategy (ACS)
objectives, and (3) the Best Management Practices (BMP) of the Mt. Hood Forest Plan.
A.
Soil Protection Standards
The Forest Service approved exceptions to several Forest Plan standards and guidelines.
AR 21262. Plaintiff argues that the exceptions are not supported by facts, and therefore are
arbitrary and capricious. Pl.’s MSJ 10. The exceptions concern two different subjects—low risk
earthflows and soil productivity.
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8 - OPINION & ORDER
1.
Low Risk Earthflows
With respect to low risk earthflows, there is an overall standard, FW-17, and four substandards, FW-18 through 20. The overall standard states that “possibilities of reactivating or
accelerating movement shall be minimized.” AR 1455. The Forest Service approved exceptions
to sub-standards FW-18 and FW-20. AR 21262.
[FW-18] The combined cumulated detrimental impacts, occurring from both past
and planned activities, of detrimental soil compaction, puddling, displacement,
erosion or severely burned soil should not exceed 8 percent of the activity area.
[FW-20] Ground machine yarding of logs should not occur.
AR 1455. Plaintiff challenges these two exceptions, arguing that the Forest Service “does not
provide adequate information that ensures management activities on designated earthflows will
not reactivate or accelerate movement.” Pl.’s MSJ 11. Plaintiff further argues that the EA does
address “the effects of road building on earthflow stability.” Id. at 12.
Plaintiff’s concern over reactivating or accelerating movement of earthflows and the
effects of road building has been adequately addressed by the EA. In the EA, an analysis was
performed to study the project’s impact on the hydrologic recovery of earthflows. AR 21081-85.
The Aggregate Recovery Percentage (ARP) Index was used to determine compliance with Forest
Plan standards and guidelines. AR 21082. The Jazz project would affect parts of 12 different
earthflows. AR 21083. The current conditions of these 12 earthflows are designated as
hydrologically recovered. 3 Id. At the recommendation of a slope stability specialist, all unstable
and potentially unstable areas were examined and eliminated from the project. AR 21080,
21085. The Forest Service predicts that the project is not likely to cause the acceleration of
movement of earthflows. AR 21083. Additionally, the slope stability specialist found that the
3
With the exception of the one earthflow with an ARP value of 85.1%, the other 11 earthflows
have values greater than 94%. AR 21083. With the proposed project, changes in ARP values
range from 0.2% to 4.3%. Id. at 21084.
9 - OPINION & ORDER
construction of new temporary roads “would have no perceptible effect on slope stability.” AR
21081. The new and existing roads would be decommissioned after the project, resulting in a net
beneficial effect on slope stability. Id.
Plaintiff further argues that exceptions to sub-standards FW-18 and 20 should not have
been granted because soil compaction rates in the project area “already exceed the 8% maximum
compaction allowed by the Forest Plan, with compaction rates from 9–25% throughout the
project area. Pl.’s MSJ 11. The FW-18 sub-standard states that soil compaction “should not
exceed 8 percent[.]” I disagree with Plaintiff that the 8% may never be exceeded. Unlike the
overall standard FW-17 which uses “shall,” FW-18 and FW-20 use the more permissive
“should” to describe prohibitions. Additionally, according to the Forest Plan, “case by case
exceptions [to “should” standards] are acceptable if identified during interdisciplinary project
planning environmental analyses” and the exceptions are “documented in environmental
analysis…public documents.” AR 1452.
Current compaction percentages already range 9%–25% due to past actions. AR 21095;
19697 (Final Soil Report describing that “timber harvest and road construction that has occurred
since the 1950s has created soil impacts that remain today.”). The cumulative effect of the
project would slightly increase the soil compaction range to 9.5%–25%, compared to the current
9–25%. Id. The Forest Service explained that helicopter logging was considered, but not
feasible due to the small benefit but high cost, and that the project allows opportunity for
restoration. AR 21262-63. Rehabilitation on skid trails was considered, but the Forest Service’s
soil scientist and silviculturist did not recommend such action for fear of damaging tree roots.
AR 21263. Restoration of compacted roads would also keep the soil compaction to a minimum.
AR 21095-96. Despite the slight increase in soil compaction, the stands are predicted to
10 - OPINION & ORDER
continue to grow well. AR 21101. The Forest Service’s exceptions to sub-standards FW-18 and
20 were documented and explained in the EA, and thus were not arbitrary and capricious.
2.
Soil Productivity
Plaintiff challenges the Forest Service’s approval of exceptions to standards FW-22 and
FW-28 regarding soil productivity.
[FW-22] The combined cumulated detrimental impacts, occurring from both past
and planned activities, of detrimental soil compaction, puddling, displacement,
erosion or severely burned soil should not exceed 15 percent of the activity area.
[FW-28] Following the completion of project activities, if more than 15 percent of
the activity area remains in an impaired (e.g., compacted, puddled, displaced or
eroded) soil condition, rehabilitative techniques should be used to restore the soil
resource to a level of less than 15 percent impaired.
AR 1456-57. Plaintiff is concerned that these exceptions “will contribute to the existing
compaction problem” and that the project fails to include any “post-project soil rehabilitation.”
Pl.’s MSJ 12.
Regarding the FW-22 soil compaction standard, the cumulative detrimental soil condition
of many of the units in the Jazz project already currently exceeds 15% because of the original
clear-cut decades ago. AR 21099-100. There is no dispute that the project is anticipated to
increase soil compaction by a small percentage. However, examination of the stands shows that
they are growing well, and are expected to continue growing well after the thinning. AR 21099.
As explained earlier, exceptions to “should” standards are allowed if the exception is identified
and explained. The Forest Service sufficiently explained its reasoning for allowing the exception
to FW-22.
With respect to the FW-28 rehabilitation standard, contrary to Plaintiff’s assertion,
rehabilitation of temporary roads and landings used by the contractor are required by contract in
very specific terms. AR 21731, 21914. The following clause appears in both contracts.
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Obliteration: Roadbed and/or landing will first be subsoiled using winged
subsoiler if so required by contract K-G.6.O#. If subsoiling is not required,
scarification may be done with log loader or other Forest Service approved
method. After or during scarification process, fill material will be returned to cut
slope, and all excavated soil returned to original locations as much as feasible.
Original land profiles will be reestablished to the maximum extent possible. All
stumps slash and vegetative debris from construction will be returned to the
obliterated road and/or landing surface. Special attention will be given road
entrances to prevent any further use of road. Extra debris, imported stumps, earth
berm, and/or slash piles as approved by Forest Service, will be used to effectively
prevent any future use of road. Following obliteration, all areas of exposed soil
not effectively covered with slash and debris, will be seeded, fertilized, and
mulched as required by K-G.6.O#.
Id. Plaintiff’s argument that post-project rehabilitation will not occur lacks merit.
Finally, Plaintiff argues that the Forest Service’s use of “boilerplate” language to approve
the exceptions shows a lack of “site-specific determinations[.]” Pl.’s MSJ 13. Even if the Forest
Service had used the same language in approving the exceptions, as explained above, the Forest
Service provided adequate reasoning to justify the exceptions for the Jazz project.
B.
Aquatic Conservation Strategy Objectives
Plaintiff argues that the Jazz project is not needed to comply with the ACS Objectives.
Pl.’s MSJ, 14. And even if thinning is necessary, the project does not comply with ACS
Objectives Nos. 5 and 8. Pl.’s MSJ 16, 18.
“The Aquatic Conservation Strategy was developed to restore and maintain the
ecological health of watersheds and aquatic ecosystems contained within them on public lands.”
AR 4145. For lands within range of the spotted owl, the Forest Service will manage the land to
achieve the ACS Objectives. AR 4147. “Complying with the Aquatic Conservation Strategy
objectives means that an agency must manage the riparian-dependent resources to maintain the
existing condition or implement actions to restore conditions. The baseline from which to assess
maintaining or restoring the condition is developed through a watershed analysis.” AR 4146. In
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order to find that the objective is met, the analysis must “include a description of the existing
condition, a description of the range of natural variability of the important physical and
biological components of a given watershed, and how the proposed project or management
action maintains the existing condition or moves it within the range of natural variability.” AR
4146.
There are nine ACS Objectives. AR 4147. These objectives are:
1. Maintain and restore the distribution, diversity, and complexity of watershed
and landscape-scale features.
2. Maintain and restore spatial and temporal connectivity within and between
watersheds.
3. Maintain and restore the physical integrity of the aquatic system.
4. Maintain and restore water quality necessary to support healthy riparian,
aquatic, and wetland ecosystems.
5. Maintain and restore the sediment regime under which aquatic ecosystems
evolved.
6. Maintain and restore in-stream flows sufficient to create and sustain riparian,
aquatic, and wetland habitats.
7. Maintain and restore the timing, variability, and duration of floodplain
inundation.
8. Maintain and restore the species composition and structural diversity of plant
communities in riparian areas and wetlands.
9. Maintain and restore habitat to support well-distributed populations of native
plant, invertebrate, and vertebrate riparian-dependent species.
Id.
1.
Thinning in Riparian Reserves
Of the 2,053 acres involved in the Jazz project, 734 acres are classified as Riparian
Reserve. AR 20961. Riparian Reserves are “designed to protect the health of the aquatic system
and its dependent species.” Id. They are part of the ACS and are located near streams and
wetlands. Id. Plaintiff argues that timber harvesting in Riparian Reserves is generally
prohibited, except when needed to attain the ACS Objectives, and that the Forest Service has not
shown that thinning is necessary. Pl.’s MSJ 14.
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In response, the Forest Service argues that thinning is necessary because the plantations
would remain overstocked, have low species diversity, and low habitat value. Def.’s MSJ 14.
The stands in the plantation would maintain their mid-seral structure for many decades, and not
mature into the desired late-successional characteristics. Id. Potentially, stream bank stability
and the overall health of the Riparian Reserves would be jeopardized as well. Id.
In the EA, all nine ACS Objectives were examined, and the Forest Service concluded that
all would be met for the project. AR 21069-76. Plaintiff asserts that the ACS Objectives could
still be met without any thinning, e.g., through a no action alternative. Pl.’s MSJ 14. Plaintiff
argues that in the no action alternative, more trees would naturally die and structural diversity
would increase as a result. Using the Forest Vegetation Simulator (FVS) model, after 40 years,
the level of dead trees over 20-inches in diameter in the Riparian Reserves would be eight per
acre with thinning and 11 per acre with no action. AR 21063. Plaintiff is correct that there
would be there would be more dead trees per acre, three to be exact, in the no action alternative.
However, the FVS model also predicts that the average tree size would be 22.6 inches with
thinning, but only 16.6 inches with no action. Id. The smaller diameter in a no action alternative
is a result of trees competing with one another for sunlight, moisture, and nutrients. AR 20955.
The Forest Service did not act arbitrarily or capriciously in choosing to thin the overstocked
plantations.
Plaintiff also argues that the EA only includes general statements that the ACS
Objectives are met. Pl.’s MSJ 15. I disagree. The EA incorporates by reference a Biological
Assessment that was specifically prepared for the Jazz project. AR 16307-92. The EA merely
summarizes the findings from Biological Assessment. AR 21069 (“The Fisheries Biological
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Assessment which is incorporated by reference has a detailed discussion of each of these
indicators.”). AR 21069-70.
2.
ACS Objective No. 5
Plaintiff contends that the Jazz project does not meet ACS Objective No. 5, which states:
“Maintain and restore the sediment regime under which aquatic ecosystems evolved. Elements
of the sediment regime include the timing volume rate and character of sediment input storage
and transport.” AR 4147. First, Plaintiff argues that the EA assessed the sediment impact for
only the year of construction, when the impact will continue for years. Pl.’s MSJ 17. Second,
the EA failed to quantify the increases in sediment from log hauling, such that trucks on the road
would increase sediment in ditch lines and streams. Id. I am not persuaded by either of
Plaintiff’s arguments.
First, though the increased sediment was modeled for the year of activity, the EA predicts
that the impact of the sediment will likely occur over multiple years. AR 21032. “The
assumption for modeling was that all roads would be used in the same year; however it is more
likely that the impact would be spread out over approximately five years.” Id. The Forest
Service explained at the hearing that by using the one-year assumption, it wanted to assess the
worst-case scenario of the project’s impact. The predicted 19 tons of sediment that will result
from the rebuilding of temporary roads represents a 0.01% increase to the 28,925 tons of natural
sediment per year. AR 21033.
Second, in the Biological Assessment, the increase in sediment from log hauling was
considered. The biologist recognized that timber and rock haul have the potential to introduce
sediment in small quantities at stream crossings via drainage ditches and culverts. AR 16359.
The sediment created from hauling “is expected to be minimal as the roads where there is a
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potential for surface runoff are asphalt or durable crushed rock.” AR 21035. Introducing
restrictions for dry and wet season hauls will also minimize sediment from log hauling. AR
16360-61. The biologist concluded that although some sediment will be introduced, following
the project criteria will “ensure that sediment delivery to streams will be slightly negative, but
insignificant.” AR 16363. In addition to the dry and wet season haul restrictions, equipment
slope restrictions, erosion control methods, and stream protection buffers will also minimize the
sediment impact. AR 21074.
3.
ACS Objective No. 8
Plaintiff argues that the Jazz Project does not comply with ACS Objective No. 8, which
states:
Maintain and restore the species composition and structural diversity of plant
communities in riparian areas and wetlands to provide adequate summer and
winter thermal regulation nutrient filtering appropriate rates of surface erosion
bank erosion and channel migration and to supply amounts and distributions of
coarse woody debris sufficient to sustain physical complexity and stability.
AR 4147. Plaintiff argues that the removal of trees, that would otherwise die naturally to create
large woody debris, will retard attainment of the objective. 4 Plaintiff also points out that surveys
have found that “wood quantities in most streams to be below current standards.” AR 21062. In
response, the Forest Service states that thinning will not occur in protection buffers along
streams, so the trees within these buffers will provide a sufficient number of woody debris for
the future. Def.’s MSJ 15.
As an initial matter, the trees to be thinned in the Jazz project are 11 to 16 inches in
diameter. AR 21063. The Forest Plan defines large woody debris as trees of at least 24 inches in
diameter. AR 1467. Currently, the trees in the project area would not become large woody
4
Large woody debris is created naturally by landslides and by falling trees from the adjacent
Riparian Reserves. AR 21062.
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debris even after 40 years. 5 Regardless, the creation of wood debris would not be significantly
impacted. The project mandates stream protection buffers to be either 50 or 100 feet wide. 6 AR
21062. This distance was chosen based on research that showed 90% of large woody debris
originates 33 to 66 feet from streams. Id. In the Jazz project, it is predicted that streams with
100-foot buffers would maintain at least 90% of woody debris and streams with a 50-foot buffer
would retain approximately 85% of woody debris. Although thinning activity in areas beyond
the buffers might decrease the amount of woody debris near streams, the decrease is
insignificant. AR 21063.
ACS Objective No. 8 concerns more than just the amount of large woody debris. The
main focus of the objective is to “[m]aintain and restore the species composition and structural
diversity of plant communities in riparian areas and wetlands[.]” AR 4147. Thinning the
Riparian Reserves would “diversify and restore native tree composition including retention of
minor tree species.” AR 21076. I cannot say that the Forest Service acted arbitrarily or
capriciously in focusing on the main objective of diversity, despite the small loss of woody
debris.
C.
Best Management Practices
Regulations for the Clean Water Act, 33 U.S.C. 1251 et seq., define “Best Management
Practices” (BMP) as
[m]ethods, measures or practices selected by an agency to meet its nonpoint
source control needs. BMPs include but are not limited to structural and
nonstructural controls and operation and maintenance procedures. BMPs can be
applied before, during and after pollution-producing activities to reduce or
eliminate the introduction of pollutants into receiving waters.
5
As mentioned earlier, the FVS model predicts that in the no action alternative, the average tree
size in the project area would be 16.6 inches in diameter after 40 years. AR 21063.
6
Theses stream buffers apply to streams where Listed Fish Habitat (LFH) occurs. AR 21254.
Other stream buffers, ranging from 50 to 85 feet will be applied to perennial streams where LFH
does not occur. Id.
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40 C.F.R. § 130.2(m). The purpose of the BMPs is to “avoid, minimize, or mitigate adverse
effects to soil, water quality, and in-stream riparian resources that may result from project
activities.” AR 21052. Under the Forest Plan, the BMPs for “Water/Aquatic Resources” are the
“primary mechanism for achieving water quality standards.” AR 1763-64. The BMP envisioned
that a report to monitor water quality would be produced annually. Id.
Plaintiff argues that the Forest Service has not produced an annual BMP report since
2004. Pl.’s MSJ 21. The Forest Service responds that BMPs are not monitored for every project
or activity in the Forest, but that it has produced forest-wide monitoring reports through 2010.
Def.’s MSJ 20-21. The Forest Service is also transitioning into a new BMP evaluation protocol
to create site-specific BMPs. Id.
Plaintiff also argues that the EA fails to assess compliance with the monitoring
requirements of the Forest Plan. Pl.’s MSJ 21. The EA includes a discussion on the monitoring
of BMPs and a discussion of how BMPs are used to monitor compliance with the Clean Water
Act. AR 20999-21000; 21052-55. Past monitoring activities on the Clackamas River Ranger
District showed “85% of [BMPs] were implemented as planned and 94% of [BMPs] were
effective at avoiding impacts to water quality.” AR 21000; 20462-71. A total of 124 BMPs
were monitored in 1998, 1999, 2000, 2001, and 2004. AR 20471. I disagree that past lapses in
producing an annual BMP report can support a NFMA violation regarding the Jazz project.
II.
NEPA
Plaintiff raises three violations of NEPA. First, Plaintiff claims that the EA does not
adequately evaluate the impacts of rebuilding decommissioned roads, soil productivity, or the
spread of invasive species. Second, Plaintiff claims that the Forest Service failed to consider a
18 - OPINION & ORDER
sufficient number of alternatives. Third, Plaintiff argues that the Forest Service is required to
prepare an Environmental Impact Statement (EIS).
A.
EA Analysis
1.
Decommissioned Roads
Plaintiff argues that the EA does not properly assess the impact of rebuilding
decommissioned roads. Specifically, Plaintiff claims that the EA misleadingly describes the
current state of the decommissioned roads, and therefore misleadingly downplays the negative
impact of rebuilding the decommissioned roads. Pl.’s MSJ 23. Plaintiff also questions whether
the Forest Service will comply with decommissioning the roads after the Jazz project concludes.
Pl.’s MSJ 25. Plaintiff further contends that even after decommissioning, recovery would take
too long—30 years, as predicted in the EA, AR 21084. Pl.’s MSJ 26. Plaintiff also raises the
issue of sediment impacts to streams, in particular to the Farm Creek watershed. Id. at 26-27.
First, the Forest Service disagrees that the decommissioned roads have “recovered,” and
that rebuilding these “recovered” roads would have a larger negative impact than estimated in the
EA. The Forest Service questions the expertise of Plaintiff’s volunteers and the validity of their
visual assessment of the roads. Def.’s MSJ 24. Road recovery is determined by factors such as
compaction, top soil displacement, intense burning, and loss of organic material. AR 21093.
Roads that have brush or small trees growing on them may look recovered but are not. Contrary
to Plaintiff’s assessment of the roads, the Forest Service’s soil specialist concluded that the roads
in question were not recovered. AR 19693-759 (soil report for Jazz project EA). When
reviewing the scientific judgment on matters within the agency’s expertise, the court defers to
the agency as long as the judgment is reasonable. See Balt. Gas & Elec. Co., 462 U.S. at 103. I
19 - OPINION & ORDER
am not persuaded that the soil specialist’s assessment is unreasonable based solely on Plaintiff’s
observations.
Plaintiff next questions whether decommissioning of the road will occur post-project, and
notes that even if decommissioning occurs, 30 years is too long for recovery. Neither of these
assertions serves as bases for a NEPA violation.
The EA includes plans for decommissioning the temporary roads after project
completion. AR 20971. Plaintiff implies that “true” decommissioning, e.g., “obliteration” of the
road, will not occur. Pl.’s MSJ 26. The EA defines decommissioning work as placing berms at
the entrance, using water bars, decompacting and roughening, covering exposed soil with slash,
and placing debris near the entrance. AR 20971-73, 20986. The EA uses the terms
“decommission” and “obliterate” to describe the same situation. AR 21030, 21731, 21914.
Plaintiff seems to argue that even though the road will be decommissioned, the road may be used
again in the future—which defeats the purpose of decommissioning. However, NEPA does not
mandate specific actions or results. High Sierra Hikers Ass’n, 390 F.3d at 639-40. Next,
Plaintiff argues that the temporary road impacts are “drastically understated” in the EA and
Decision Notice and will impact the landscape for years. Pl.’s MSJ 26. Yet, Plaintiff does not
explain how a 30-year recovery shows that the Forest Service did not take a “hard look” at the
impact of decommissioning roads.
Next, Plaintiff again raises concerns about sediment increases, as it did in its NFMA
claim. Plaintiff is particularly concerned with how the increased sediment will affect the Farm
Creek-Collawash River subwatershed. Pl.’s MSJ 27. As discussed earlier, the temporary roads
in the Jazz project are estimated to increase sediment delivery by 19 tons, which is a 0.01%
increase over the annual 28,925 tons of natural sediment from landslides and 1,711 tons from
20 - OPINION & ORDER
roads. AR 21028-33. The Farm Creek subwatershed is expected to receive 13 of the 19 tons of
additional sediment from the temporary roads. AR 21032. To give some perspective, the Farm
Creek subwatershed annually receives 6,874 tons of natural sediment from landslides and 503
tons of natural sediment from existing roads. Id. Although 13 tons of additional sediment is
expected, this estimate will be distributed over the course of five years. AR 21032. The water
specialist notes that “[u]nder natural conditions the stream channels in this area have developed
to process large amounts of sediment[.]” AR 20421.
The EA also relies on a water quality specialist report to analyze the condition of the
Farm Creek subwatershed. AR 20387-948. According to 12 core national indicators, the Farm
Creek subwatershed is functioning properly. AR 20389. Specifically, the Farm Creek
subwatershed had the following ratings: 1.7 for Aquatic Physical, 1 for Aquatic Biological, 2.1
for Terrestrial Physical, and 1 for Terrestrial Biological. The Terrestrial Physical rating can be
broken down further into two indicators: roads and soils. Id. The ratings were 2.8 for roads and
1.3 for soils. Id. “The road indicator addresses changes to the hydrologic and sediment regimes
due to the density, location, distribution, and maintenance of the road and trail network.” AR
20389-90. A rating of 1 means “good” condition, a rating of 2 means “fair” condition, and a
rating of 3 means “poor” condition. AR 20390.
The water specialist predicts the Jazz project’s impact on the ARP value for the Farm
Creek subwatershed to decrease only 0.5%, from 92.2% to 91.7%. The ARP value indicates the
level of hydrologic recovery. AR 20414. “With the relatively high existing levels of hydrologic
recovery for [the Farm Creek subwatershed],” the slight change in ARP “would not likely cause
stream channel instability or increases in peak flows during rain-on-snow events.” Id.
21 - OPINION & ORDER
Taking into account the entire analysis by the water specialist, the EA sufficiently
considered the impact of additional sediment to the Farm Creek subwatershed.
2.
Soil Productivity
Plaintiff raises three arguments regarding soil productivity. First, the EA does not
consider the impact of mechanical harvesters on soil compaction. Pl.’s MSJ 28. Second, the EA
does not provide an estimate of the potential large, woody debris that will be lost. Id. at 28-29.
And third, the BMPs and project design criteria are insufficient to mitigate impacts to the soil
due to the lack of a rigorous monitoring program. Id. at 30.
First, Plaintiff is incorrect that that the effect of mechanical harvesters on soil compaction
was not considered in the EA. AR 21089-90. The Forest Service’s soil scientist found that
harvesters would contribute an additional 2% compaction. AR 19718 (columns AW-AX,
10894).
Second, the EA explains that no large, woody debris will be removed; that during the
harvest, small woody debris would be added; and that decommissioning of roads would place
course woody debris on the road. AR 21097-98. As discussed earlier, in the context of ACS
Objective No. 8, future woody debris will be only slightly impacted due to the project.
Third, Plaintiff’s argument regarding the BMPs is an attempt to challenge the EA’s
finding of no significant impact (FONSI), and require the Forest Service to issue an
environmental impact statement (EIS). Pl.’s MSJ 29. “An agency must prepare an EIS if
substantial questions are raised as to whether a project…may cause significant degradation of
some human environmental factor.” Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir.
1992).
22 - OPINION & ORDER
“An agency’s decision to forego issuing an EIS may be justified by the presence of
mitigating measures.” Wetlands Action Network v. United States Army Corps of Eng’rs, 222
F.3d 1105, 1121 (9th Cir. 2000). “In evaluating the sufficiency of mitigation measures, we focus
on whether the mitigation measures constitute an adequate buffer against the negative impacts
that result from the authorized activity to render such impacts so minor as to not warrant an EIS.”
Id. The mitigation measures must be “developed to a reasonable degree.” National Parks &
Conservation Ass’n v. Babbitt, 241 F.3d 722, 734 (9th Cir. 2001). “A perfunctory description, or
mere listing of mitigation measures, without supporting analytical data, is insufficient to support
a finding of no significant impact.” Id. (quotations omitted).
Here, Plaintiff argues that the Forest Service lacks an adequate monitoring program and
suggests that the mitigation measures will not be effective. Pl.’s MSJ 30. The legal authorities
cited by Plaintiff focus on the sufficiency of mitigation measures to determine whether an EIS is
required. Plaintiff does not explain how the BMPs or project design criteria are insufficient,
undeveloped, or not supported by data. Instead, Plaintiff asserts that 25% of the time, BMPs will
not be implemented on the Jazz project, resulting in a far more negative impact on the project
area. Pl.’s MSJ Resp. & Reply 22. Plaintiff bases its argument on the following statement in the
EA:
The [Forest Service hydrology specialist’s] analysis found that the [project design
criteria 7] had a moderate to high ability to implement and moderate to high level
of expected effectiveness, meaning that all practices would be implemented and
effective at least 75% of the time.
AR 21054. The Forest Service responds that the 75% is a conservative estimate and that the
implementation and effectiveness percentages are actually higher. A closer look at the
hydrology specialist’s report reveals that this is true. AR 20479-96.
7
Project design criteria are BMPs that are more refined, as they are based on local conditions.
AR 20999.
23 - OPINION & ORDER
The Forest Service uses “high,” “moderate,” and “low” ratings to estimate its ability to
implement the BMP and the effectiveness of the BMP. Regarding implementation, these ratings
are defined as:
High: Almost certain the BMP can be implemented as planned.
Moderate: Greater than 75% certainty the BMP can be implemented as planned
Low: Less than 75% certainty the BMP can be implemented as planned.
AR 20497. Regarding effectiveness of the BMP, the ratings are defined as:
High: Practice is highly effective (90%) and one or more of the following types
of documentation are available:
Literature/Research must be applicable to area
Administrative studies-local or within similar ecosystem
Experience- judgment of an expert by education and/or experience
Fact-obvious by reasoned logical response
Moderate: Documentation shows that the practice is effective less than 90% of
the time, but at least 75% of the time, or logic indicates that this practice is highly
effective, but there is little or no documentation to back it up.
Low: Effectiveness unknown or unverified, and there is little or no
documentation or applied logic is uncertain in this case, or the practice is
estimated to be less than 75% effective.
Id. Eighteen BMPs were evaluated for the Jazz project. AR 20475-78. The hydrologist
specialist evaluated how the project design criteria would affect the 18 BMPs. Id. Then, using
the ratings of high, moderate, and low, the hydrologist specialist estimated the Forest Service’s
ability to implement and the effectiveness of the 18 BMPs. AR 20479-96. The hydrologist
specialist’s ratings for the BMPs are summed up in the following chart.
Rating
High
High to Moderate
Moderate
Low
24 - OPINION & ORDER
Implementation
11 BMPs
6 BMPs
1 BMP
0
Effectiveness
10 BMPs
8 BMPs
0
0
This chart shows that the general statement from the EA—that all BMPs would be implemented
and effective 75% of the time—is correct, but belies the higher estimated success of the BMPs. I
am not convinced by Plaintiff’s argument that the BMPs would not be implemented or effective
25% of the time, and thus, decline to find that an EIS is required based on this argument.
3.
Invasive Species
Plaintiff argues that the EA inadequately discusses the effects of invasive species. Pl.’s
MSJ 31. Plaintiff also argues that the no-action alternative was not sufficiently analyzed with
respect to invasive species. Id. at 32.
The EA addressed the impact of invasive species and several mitigation measures to
prevent the spread of invasive species. AR 21150, 21154. The EA identified the invasive
species currently in the project area that have a high risk of spreading. AR 21151-54. The EA
incorporated by reference two other EISs, the 2005 Pacific Northwest Region Invasive Plant
Program Preventing and Managing Invasive Plants Final EIS and the Site Specific Invasive Plant
Treatments for the Mt. Hood National Forest Invasive Species EIS. AR 21150, 6954-7418,
9465-10309. Project design criteria includes minimizing soil disturbance, preventing erosion
using weed-free erosion control methods, cleaning equipment, and using gravel from weed-free
sources. AR 21154. These measures are considered moderately effective. Id. Other criteria
such as using native plant materials and certified weed-free straw and mulch are considered
highly effective. Id. Plaintiff desires a more in-depth explanation of why there is a high risk of
spreading invasive species. Pl.’s MSJ 31. But “NEPA requires not that an agency engage in the
most exhaustive environmental analysis theoretically possible, but that it take a ‘hard look’ at
relevant factors.” Northwest Envtl. Advocates v. Nat’l Marine Fisheries Serv., 460 F.3d 1125,
1139 (9th Cir. 2006).
25 - OPINION & ORDER
Plaintiff further argues that the no-action alternative was not sufficiently considered
because the EA failed to analyze the number of acres of forest that would be susceptible to
invasive species. Plaintiff believes that under the no-action alternative, there would be zero risk
of spreading invasive species via roads. Plaintiff is incorrect, as the risk of invasive species may
exist even without the Jazz project because vehicles, people and animals are capable of
transporting seeds of invasive species. AR 21554. Again, NEPA only requires that the Forest
Service take a “hard look” at the issue, and does not mandate how the analysis is performed. I
find that the Forest Service adequately assessed the impact of invasive species.
B.
Consideration of Alternatives
Plaintiff argues that the Forest Service did not consider a sufficient number of
alternatives to the Jazz project. Pl.’s MSJ 32.
NEPA requires agencies to “study, develop, and describe appropriate alternatives to
recommended courses of action in any proposal which involves unresolved conflicts concerning
alternative uses of available resources.” 42 U.S.C. § 4332(2)(E); N. Idaho Cmty. Action
Network v. U.S. DOT, 545 F.3d 1147, 1153 (9th Cir. 2008). This “alternatives provision”
applies whether an agency is preparing an EIS or an EA, and requires the agency to give full and
meaningful consideration to all reasonable alternatives. N. Idaho Cmty. Action Network, 545
F.3d at 1153, citing Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1245 (9th
Cir. 2005). However, “an agency’s obligation to consider alternatives under an EA is a lesser
one than under an EIS.” Id. at 1246. Whereas with an EIS, an agency is required to
“[r]igorously explore and objectively evaluate all reasonable alternatives,” see 40 C.F.R. §
1502.14(a), with an EA an agency is only required to include “brief discussions of the need for
the proposal, [and] of alternatives as required by section 102(2)(E)….” 40 C.F.R. § 1508.9(b).
26 - OPINION & ORDER
The available reasonable alternatives are dictated by the underlying purpose of the
proposed action. See City of Carmel-by-the-Sea v. U.S. DOT, 123 F.3d 1142, 1155 (9th Cir.
1997). The court “reviews an agency’s range of alternatives under a ‘rule of reason’ standard
that requires an agency to set forth only those alternatives necessary to permit a reasoned
choice.” Presidio Golf Club v. Nat’l Park Serv., 155 F.3d 1153, 1160 (9th Cir. 1998). Finally,
there is no minimum number of alternatives that must be considered. Native Ecosystems
Council, 428 F.3d at 1246 (NEPA “does not impose a numerical floor on alternatives to be
considered”).
Defendant considered alternative plans. AR 21001-003. The Forest Service considered
several variations of the proposed action, including (1) not building new roads or reopening old
road alignments, (2) eliminating some road construction, (3) increasing levels of snags, downed
woody debris, and leaving more skips, (4) deleting the thinning in Late-Successional Reserves,
Riparian Reserves, and earthflows, and (5) eliminating all helicopter logging. AR 21001-05.
The alternative to not building new roads or reopening old road alignments would affect half of
the project acres. AR 21002. Without roads, helicopter logging was not feasible due to the high
cost. Id. Eliminating thinning in the Late-Successional Reserves, Riparian Reserves, and
earthflows would eliminate 95% of the proposed thinning. AR 21004. These alternatives were
eliminated because they would not accomplish the purpose and need of the project, specifically
increasing forest health, increasing vertical and horizontal stand structure, and providing forest
products to the local economy. I find that the Forest Service considered a reasonable number of
alternatives and adequately explained why the alternatives were not viable.
///
///
27 - OPINION & ORDER
C.
EIS Requirement
Plaintiff argues that Defendant must prepare an EIS because the Jazz project may
significantly affect the environment.
NEPA requires all government agencies to prepare an EIS when a proposed federal
action may “significantly affect[] the quality of the human environment.” 42 U.S.C. §
4332(2)(C). Importantly, the significant effect need not actually occur; it is sufficient to trigger
the preparation of an EIS if a substantial question is raised “whether a project may have a
significant effect on the environment.” Blue Mountains Biodiversity Proj. v. Blackwood, 161
F.3d 1208, 1212 (9th Cir. 1998). If an agency moves forward without issuing an EIS, the agency
must provide a “convincing statement of reasons” to support why the proposed project is not
significant; this explanation is critical in demonstrating that the agency took the requisite “hard
look” at the potential effects of a project. Id.
In assessing a project’s significance, both its context and intensity are evaluated. 40
C.F.R. § 1508.27. The context varies depending on the scope of the project. Id. The intensity,
or the “severity of the impact” of the proposed action, should be evaluated based on a number
“significance” factors. 8 See 40 C.F.R. § 1508.27(b)(1)-(10). A court may find a substantial risk
8
The following factors are considered in evaluating intensity:
(1) Impacts that may be both beneficial and adverse.…
(2) The degree to which the proposed action affects public health or safety.
(3) Unique characteristics of the geographic area such as proximity to historic or cultural
resources park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically
critical areas.
(4) The degree to which the effects on the quality of the human environment are likely to
be highly controversial.
(5) The degree to which the possible effects on the human environment are highly
uncertain or involve unique or unknown risks.
(6) The degree to which the action may establish a precedent for future actions….
(7) Whether the action is related to other actions with individually insignificant but
cumulatively significant impacts….
28 - OPINION & ORDER
of a significant effect based on just one of these factors. Ocean Advocates v. U.S. Army Corps
of Eng’rs, 402 F.3d 846, 865 (9th Cir. 2004).
Plaintiffs argue that the following significance factors weigh in favor of the preparation
of an EIS for the project: [third factor] the proximity of the project to the Riparian Reserves,
Late-Successional Reserves, and Tier 1 Key Watershed, which are ecologically critical areas;
[fourth and fifth factors] the effects of the project on the human environment are highly
controversial, uncertain, or involve unique or unknown risks, and [tenth factor] the project
threatens a violation of law imposed for the protection of the environment. Pl.’s MSJ 39-40.
The Forest Service disagrees that an EIS for the Project is required by NEPA.
The court in Cascadia Wildlands found the Riparian Reserves to be ecologically critical
areas. 937 F. Supp. 2d at 1275, 1282. In finding the third factor weighs in favor of preparing an
EIS, the court found that the “substantial decrease in the overall acreage of the [Lookout
Mountain Potential Wilderness Area (PWA)]” and the construction of a permanent road would
alter the unique characteristics of the area. Id. at 1281. Here, the Jazz project is vastly different
than the one proposed in Cascadia Wildlands. The Cascadia Wildlands project is described as
follows:
454 acres of removal or downgrade of northern spotted owl habitat. In Riparian
Reserves, it includes 362 acres of commercial thinning and an additional 582
acres slated for fuels treatment. Also included in the proposed Project are 365
acres of fire-regenerated stands more than 80 years old. The Project authorizes
one mile of permanent road construction, eight miles of temporary road
construction, and 43 miles of road maintenance. Additionally, the project would
result in 680 acres of PWA lost through harvest and fuels reduction and 569 acres
(8) The degree to which the action may adversely affect [places/structures] listed in or
eligible for listing in the National Register of Historic Places….
(9) The degree to which the action may adversely affect an endangered or threatened
species or its habitat….
(10) Whether the action threatens a violation of Federal, State, or local law or
requirements imposed for the protection of the environment.
40 C.F.R. § 1508.27.
29 - OPINION & ORDER
lost through fragmentation. In total, the Lookout Mountain PWA would lose
1,249 acres of its 9,684 acres of potential wilderness.
Id. at 1274. Although Riparian Reserves are affected by the Jazz project, unlike Cascadia
Wildlands, the northern spotted owl habitat will not be downgraded or removed, no permanent
roads will be built, and there is no loss of potential wilderness.
Plaintiff next argues that the effects of the Jazz project on the human environment are
highly controversial or involve unknown risks because there is a “substantial dispute” about the
project’s impact. Pl.’s MSJ 39. Plaintiff argues that it has raised substantial questions about soil
stability, soil productivity, water quality, and invasive species. Id. A disagreement in opinion
does not undermine the validity of an EA. See City of Carmel-by-the-Sea, 123 F.3d at 1151.
And as discussed throughout this opinion, I have found that the EA sufficiently disclosed the
project’s impacts and risks regarding soil impacts, water quality, and invasive species. Finally,
Plaintiff argues that the project violates NFMA and Forest Plan standards. Because I have found
otherwise, this factor does not favor requiring the Forest Service to prepare an EIS.
CONCLUSION
Based on the foregoing, I conclude that the Forest Service has not violated NFMA or
NEPA. Therefore, Plaintiff’s motion [51] is denied, Defendants’ motion [57] is granted, and
Defendant-Intervenor’s motion [60] is granted.
IT IS SO ORDERED.
Dated this 11th day of April, 2014.
MARCO A. HERNÁNDEZ
United States District Judge
30 - OPINION & ORDER
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