Oregon Wild, et al v. United States Bureau of Lane Management

Filing 39

OPINION AND ORDER: The Court GRANTS Plaintiffs' Motion for Summary Judgment 23 as to the NEPA claims and DENIES Defendant and Defendant-Intervenors' Cross-Motions for Summary Judgment (Docs. 27 and 28 ). The Court SETS ASIDE the White Castle Project's authorization, holding that BLM violated NEPA and APA. See formal OPINION AND ORDER. Signed on 3/14/2015 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
OREGON WILD, an Oregon nonprofit corporation; and
CASCADIA WILDLANDS, an Oregon
non-profit corporation,
Plaintiffs,

v.
BUREAU OF LAND ~ffiNAGEMENT,
an administrative agency of
the United States Department
of Interior,
Defendant,
v.

SCOTT TIMBER Co., an Oregon
corporation; and CARPENTERS
INDUSTRIAL COUNCIL, an Oregon
non-profit corporation,
DefendantIntervenors.

Jennifer R. Schwartz
Law Office of Jennifer R. Schwartz
325 NE Graham Street, #8
Portland, Oregon 97212
Nicholas S. Cady
Cascadia Wildlands
P.O. Box 10455
Eugene, Oregon 97440
Attorneys for plaintiffs
Page 1 - OPINION AND ORDER

Case No. 6:14-CV-0110-AA
OPINION AND ORDER

Sam Hirsch
Acting Assistant Attorney General
Brian M. Collins
U.S. Department of Justice
Environmental and Natural Resources Division
P.O. Box 7611
Washington, DC 20044
Attorneys for defendant
Robert L. Molinelli
Scott W. Horngren
American Forest Resource Council
5100 SW Macadam Boulevard, Suite 350
Portland, Oregon 97239
Attorneys for defendant-intervenors
AIKEN, Chief Judge:
Plaintiffs Oregon Wild and Cascadia Wildlands move for summary
judgment

pursuant

to

Fed.

R.

Civ.

P.

They

56.

allege

that

defendant, the U.S. Bureau of Land Management ("BLM"), violated the
National Environmental Policy Act ("NEPA"), the Federal Land Policy
and !Ylanagement Act

("FLPMA"),

the Administrative

Procedure Act

("APA"), and those statutes' implementing regulations.
BL!Yl and defendant-intervenors,
and

Carpenters

motion
reasons

and

Industrial

filed

Scott Timber Co.

Council

cross-motions

set forth below,

("CIC"),

for

summary

Defendant

("Scott Timber")

oppose

plaintiffs'

judgment.

For

the

the Court partially grants plaintiffs'

motion for summary judgement and denies the defense cross-motions.
The Court need not reach plaintiffs' FLPMA claims, because it finds
BLM violated NEPA and APA.

BACKGROUND
Plaintiffs challenge ELM's authorization of the White Castle
Project

("project")

located in BLM' s Roseburg District near the

community of !Ylyrtle Creek in Douglas County.
Page 2 - OPINION AND ORDER

Administrative Record

( "AR" )

73 9,

770 .

In December 2 010,

the U.S.

Secretary of the

Interior directed Roseburg and other BLM districts in southwest
Oregon

to

develop

demonstration

pilot

projects

to

apply

the

principles of "ecological restoration" developed by Drs. Jerry F.
Franklin and K. Norman Johnson ("Franklin and Johnson")
see AR 18332-40.
harvests

that

AR 6410;

The White Castle Project is one of two timber
comprise

the

Roseburg

District

Demonstration Pilot Project ("pilot project").

Secretarial

AR 739.

Plaintiffs

do not challenge the pilot project's other timber harvest, the Buck
Rising Timber Sale, because it would affect younger trees that do
not

provide

nesting,

roosting,

threatened northern spotted owl.

and

foraging

habitat

for

the

Compl. 11.

The federal government listed the northern spotted owl as a
threatened species under the Endangered Species Act in 1990, and
its population has continued to decline since then, due, in part,
to habitat loss from timber harvest.

Determination of Threatened

Status for the Northern Spotted Owl, 55 Fed. Reg. 26, 114 (June 26,
1990)

(codified at 15 C.F.R.

§

17.11(h)); AR 1366, 1382.

The White

Castle Project falls within the purview of the Northwest Forest
Plan

("NWFP"),

environmental

which

coordinates

concerns

with

the

federal
need

efforts

for

to

sustainable

products in the range of the northern spotted owl.

balance
forest

AR 1381.

The

project also falls under the Revised Recovery Plan for the Northern
Spotted Owl published by the U.S. Fish and Wildlife Service ("FWS")
to provide recommendations for the conservation of the species and
its

habitat.

AR

1382,

Page 3 - OPINION AND ORDER

2307.

In

February

2012,

during

the

project's planning stages, FWS proposed designating almost all of
the pilot project area as "critical habitat .

. essential to the

conservation of the spotted owl." AR 1011, 16403-506. 1

In December

2012, after BLM had already approved the project, FWS finalized a
critical habitat designation that included an even greater portion
of the pilot project area.

AR 475,

478;

Designation of Revised

Critical Habitat for the Northern Spotted Owl, 77 Fed. Reg. 71876
( Dec . 4 2 0 12 ) .
The

White

Castle

harvesting methods,

2

Project

implements

variable

retention

a shift for the Roseburg District, which has

relied almost exclusively on less intensive thinning and density
management strategies for timber production since 2000.

AR 513.

The project would apply variable retention harvesting techniques to
265 acres, retaining 78 acres and logging 187 acres of forest.
740,

537,

544.

The project would harvest the 187 acres in nine

separate units clustered within a few miles of one another.
739, 770, 726.

AR

AR

The forest stands to be harvested range in age from

60 to 110 years old,

and "most of the stands to be treated are

1

The pilot project's Finding of No Significant Impact
noted, "The Roseburg District Secretarial Demonstration Pilot
Project is located in an area almost entirely proposed for
designation as critical habitat for the northern spotted owl on
February 28 2012." AR 1011.
2

Distinguishable from traditional clear-cutting, the
variable retention harvesting method logs some trees and retains
others in a predetermined ratio.
Pls.' Mem. Mot. Summ. J. vii;
Def.'s Resp. Mot. Summ. J. 22-23; AR 6594.
Trees may be retained
in patches (aggregated retention) or dispersed throughout a
harvested area(dispersed retention). AR 6594, 2277.
The project
would use both methods to retain trees.
AR 6421, 544.
Page 4 - OPINION AND ORDER

between 100 and 110 years of age."

AR 539. 3

The project would

effectively remove 160 acres of "mature forest," defined as stands
over 8 0 years old. 4

AR 503

(BLM response to project prates t) .

Defendant-Intervenor Scott Timber purchased the project's timber
sale and would harvest an estimated 6,395 thousand board feet of
timber.

AR 739; Scott Mot. Intervene 4.

After the White Castle Project's authorization, FWS designated
all or almost all 187 acres slated for harvest as critical habitat
for the northern spotted owl.

AR 1028-29, 1359, 748. 5

The project

would remove habitat within the home ranges 6 of several spotted
owls, although no nests would be located in the harvest area.
6468, 748, 1403.

AR

BLM consulted with FWS at all stages of project

planning and requested a Biological Opinion

( "BiOp")

vvhich FWS

issued June 4, 2012 and updated and confirmed on January 11, 2013
after FWS approved final critical habitat designations.

AR 1351-

BLM made this statement in its response to an
administrative appeal of the White Castle Project.
AR 539. More
precisely, a review of data from the Environmental Assessment in
combination with data from the White Castle Project decision
document indicates that forest stands over 98 years old would
represent 120 of the 187 acres to be harvested. AR 740, 6445.
4

Federal land management documents explain, "In Douglas
fir west of the Cascades, [the mature forest] stage typically
begins between 80 and 130 years depending on site conditions and
stand history." AR 10016 (NWFP amendment document).
5

BLM has not specified precisely how many acres of
critical habitat the White Castle Project would eliminate.
further discussion, see infra note 14.
6

For

A home range is a 1.2 mile radius circle (2,955 acres
total) that surrounds a northern spotted owl nesting site and
provides food, cover, and other necessities for the owls and
their offspring.
AR 6471.
Page 5 - OPINION AND ORDER

(BiOp) ,

1442

1027-30

(errata),

475-80

(update) .

The

BiOp

determined the project would "adversely affect" northern spotted
owls, their critical habitat, and their prey such as red tree voles
but would not jeopardize the continued existence of the northern
spotted owl as a species. AR 1351, 1412-13, 1421-23, 478-80.
The project area contains habitat for the red tree vole, an
arboreal rodent that inhabits older conifer forests and serves as
a key food source for spotted owls.

AR 6479.

AR 6479,

and Manage requirements for red tree voles.
During

the

development

of

the

The NWFP sets Survey
9876,

volunteers

project,

organization Northwest Ecosystems Survey Team

9878.

with

("NEST")

the

surveyed

project units for voles and submitted evidence of nest sites to
AR 4008-11,

BLJVl.

3006.

BLM acknowledged NEST's submissions but

rejected the findings and declined to analyze them in the project's
Environmental Assessment ("EA") or to manage the alleged sites in
accordance with the NWFP.

AR 3006, 6480.

In April 2012, BLM issued the EA for the pilot project as a
whole,

analyzing the White Castle and Buck Rising project areas

together.
three-fold

AR 6402-6652.
purpose:

(1)

The EA set
to

forth

demonstrate

a

the pilot project's
variable

retention

harvesting model to create complex, early-successional habitat; (2)
to design the pilot project with participation from FWS in order to
apply Recovery Actions from the Northern Spotted Owl Recovery Plan;
and

(3)

to design and offer timber sales that benefit local and

regional employment and manufacturing.
two

al terna ti ves:

a

no-action

Page 6 - OPINION AND ORDER

AR 6411.

al terna ti ve

and

The EA assessed
the

project

as

proposed,

breaking the analysis of the proposed action into two

variations,

one with and one without riparian treatments in the

Buck Rising Project area.

AR 6419-22.

In June 2012, after public

comment and the FWS BiOp, BLM opted for the proposed project with
riparian treatments and issued a Finding of No Significant Impact
("FONSI") .

In August 2012, BLM authorized both the

AR 1006-15.

Buck Rising and White Castle projects.
On January 22,
claiming BLM' s

2014, plaintiffs filed the present complaint,

analysis

Project violated NEPA,
Compl. 19.

AR 739-87.

and

authorization

FLPMA, APA,

of

the

\il7hi te

Castle

and accompanying regulations.

On May 12, 2014, the Court permitted Scott Timber, the

contract holder for the White Castle timber sale, and CIC, a union
representing affected lumber mill workers, to intervene.

On June

20, 2014, plaintiffs moved for summary judgment, and defendant and
defendant-intervenors

responded

and

summary judgment in their favor.
NEPA

by

failing

alternatives;
("EIS");
project's

and

not

to

analyze

preparing

failing

potential

to

take

7

cross-motions

seeking

Plaintiffs allege BLM violated
an

an

made

adequate

range

Environmental

the

environmental

required

of

Impact

project
Statement

"hard look"

consequences.

Compl.

at

the

16-18.

Plaintiffs also claim BLM violated FLPMA and NEPA by failing to
adhere to NWFP requirements for surveying and managing red tree
vole sites.

Compl. 19.

Plaintiffs ask the Court to find that BLM

7

Defendant-intervenors' pleadings are largely duplicative
of ELM's arguments.
As such, the Court's discussion of ELM's
claims subsumes those of defendant-intervenors, except where
otherwise indicated.
Page 7 - OPINION AND ORDER

violated NEPA, FLPMA, and APA; to vacate the White Castle decision;
and to enjoin BLM from proceeding with the project and compel them
to

correct

the

alleged violations.

Pls.'

Mot.

Summ.

J.

2-3.

Plaintiffs also seek attorney fees and costs. Id. at 3.
STANDARD OF REVIEW

Courts must review federal agencies' compliance with NEPA or
FLPMA under the APA.

5 U.S.C.

§

706. In an APA case, a court will

award summary judgment for the plaintiff if,

after reviewing the

administrative record, it determines that the agency's action was
"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law." Natural Res.
Fisheries
U.S.C.

§

"engage
probing,

Senr.,

421

706 (2) (A)).
in

a

F.3d 872,

Def.

877

Council v. Nat'l Marine

(9th Cir.

2005)

(quoting 5

Under this standard of review, the court must

substantial

inquiry,"

r,vhich

entails

"a

thorough,

in-depth review," Native Ecosys. Council v. U.S.

Serv., 418 F.3d 953,

960

(9th Cir. 2005).

However, the court may

not substitute its own judgment for that of the agency.
Council v.

McNair,

537 F.3d 981,

987

Forest

(9th Cir.

2008)

Lands

(en bane),

overruled on other grounds by Am. Trucking Ass'ns Inc. v. City of
Los Angeles, 559 F.3d 1046 (9th Cir. 2009).
The Court need only defer to an agency's decision if it is
"fully informed and well-considered"

and must reject an agency

decision that amounts to "a clear error of judgment."
v.

Bosworth,

510 F.3d 1016,

internal quotations omitted) .

1023

(9th Cir.

2007)

(citations and

Specifically, the court will reverse

an agency's decision as arbitrary or capricious
Page 8 - OPINION AND ORDER

Sierra Club

if the agency relied on factors Congress did not intend
it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation that ran
counter to the evidence before the agency, or offered one
that is so implausible that it could not be ascribed to
a difference in view or the product of agency expertise.
Id.

(quoting W.

Cir. 1996)).

Radio Servs. Co. v. Espy,

79 F.3d 896,

900

(9th

As such, in order to withstand summary judgment, the

"agency must articulate a rational connection between the facts
found and the conclusions reached."

Sierra Club, 510 F.3d at 1023.

Independent of these concerns, the court will set aside an agency's
action if it acted without observing procedures required by law.
Sierra

Club,

510

F.3d

at

1023;

Alexander, 222 F.3d 562, 567-68

Idaho

Sporting Cong.,

Inc.

v.

(9th Cir. 2000).

DISCUSSION
I .

NEPA Claims;

NEPA is a procedural statute that does not mandate particular
results but rather sets forth a
federal

take

agencies

a

review process to "ensure that

hard

consequences" of a proposed action.

the

environmental

Sierra Club,

510 F.3d 1016,

look

at

1018

(9th Cir. 2007); Conservation Cong. v. Finley, 774 F.3d 611,

616

(9th

considering

Cir.

2014).

"major

Critically,

Federal

actions

NEPA

requires

significantly

affecting

quality of the human environment" to prepare an EIS.
4332(c);

Conservation

Cong.,

774

F.3d at

616.

agencies
the

42 U.S.C. §
In

order

to

determine if an EIS is required, an agency may first prepare a less
extensive EA.

Sierra Club, 510 F.3d at 1018; 40 C.F.R. § 1508.9.

If the EA finds the proposed action will significantly affect the
environment, the agency must prepare an EIS.
Page 9 - OPINION AND ORDER

W. Watersheds Project

v. Abbey, 719 F.3d 1035, 1050 (9th Cir. 2013).
finds no significant environment impact,
Finding Of

No

Significant

Impact

However, if the EA

the agency may issue a

("FONSI"),

"accompanied by

a

convincing statement of reasons to explain why a project's impacts
are insignificant," and then proceed without further study.

Sierra

Club, 510 F.3d at 1018.
Plaintiffs argue that the BLM violated NEPA by:

(1) failing to

adequately analyze alternative approaches to the project in the EA;
(2) not preparing an EIS; and (3) failing to take a "hard look" at
the project's direct and indirect environmental impacts. 8
16-19.

Compl.

For the reasons set forth below, the Court finds that the

BLM acted arbitrarily and capriciously, violating the requirements
of NEPA.

A.

Adequacy of EA Alternatives Analysis

NEPA
describe

requires

a

appropriate

federal

agency

alternatives"

to
to

"study,
a

develop,

proposed

and

project

independent of whether the agency is preparing an EA or an EIS.

42

U.S.C. § 4332(2) (E); Bob Marshall Alliance v. Hodel, 852 F.2d 1223,
1229

(9th

Cir.

1988);

see

40

C.F.R.

§

1508.9.

""Informed and

meaningful consideration of alternatives" is "critical to the goals
of NEPA," ensuring that agency decision-makers assess a project's
costs, benefits, and environmental impacts in the correct context.
Bob

JVlarshall

Alliance,

852

F.2d at

1228-29.

Although BLM

is

Plaintiffs also claim BLM violated NEPA by failing to
consider red tree vole sites.
Because this NEPA claim is closely
linked to plaintiffs' FLPMA claim, this opinion more fully
addresses it in the next section.
Page 10 - OPINION AND ORDER

correct

in

asserting

it

bears

a

lesser

burden

to

alternatives in an EA than in an EIS, an EA must still
and

meaningful

consideration

to

all

reasonable

discuss

~give

full

alternatives."

Abbey, 719 F.3d 1035, 1050 (9th Cir. 2013); N. Idaho Cmty. Action
Network v.
2008) .

U.S.

Dep't of Transp.,

The Ninth Circuit made

Abbey,

existence

~The

of

a

545 F.3d 1147,
clear

viable

1153

(9th Cir.

in Western Watersheds

but

unexamined

v.

alternative

renders an EA inadequate." 719 F.3d at 1050.
Plaintiffs argue the EA was inadequate, because it failed to
analyze viable alternatives to the proposed project, in particular,
the

alternative

harvest
response,

to

of

younger
BLlYl

does

limiting
trees.
not

the

project's

Pls.'
dispute

variable

f.viem.

lYlot.

Summ.

the

reasonableness

alternative but instead argues the agency was not

J.

retention
33.
of

In
this

~obligated

to

analyze an alternative that Plaintiffs did not even suggest at the
time of the Project decision." Def.'s Reply 21; see Def.'s
Summ.

J.

30-31.

obligation by

BLlYl further

~developing

argues

that

it

fulfilled

lYlot.

its NEPA

and analyzing several alternatives that

encompassed varying levels of environmental impact."

Def.'s Reply

21.
The pilot project EA analyzed two alternatives:
alternative and the project as proposed.

AR 6404.

9

a no-action
The EA also

BLlYl divided its analysis of the proposed project into two
one with variable thinning treatments in
riparian reserves and one without such treatments.
AR 6404.
The
analyzed sub-alternatives presented identical plans for White
Castle Project area.
AR 1006, 6431, 739.
~sub-alternatives":

Page 11 - OPINION AND ORDER

provided "reference analyses," briefly discussing and rejecting two
different

al terna ti ve

harvest methods:

commercial

and variable

density thinning only; and traditional regeneration harvesting.
6433-42.

AR

The EA did not analyze the possibility of conducting

variable retention harvesting in younger stands of trees.
In arguing that its analysis was sufficient, BLM misconstrues
its obligations under NEPA.

BLM argues the holding in Western

Watersheds established only "the limited proposition" that an EA's
analysis of alternatives is adequate unless the agency has "failed
to analyze any alternatives that would result in varying levels of
environmental

impact."

Def. 's

Reply

20.

On

this

basis,

BLH

concludes that an EA may satisfy NEPA by merely considering some
alternative
project.

with
Id.

less
BLM' s

environmental
interpretation

impact

than

contradicts

the
Ninth

proposed
Circuit

precedent and the plain language of Western Watersheds which hold
agencies

to

the

stricter

reasonable alternatives.

standard of examining all viable

and

See W. Watersheds v. Abbey, 719 F.3d. at

1050 ("The existence of a viable but unexamined alternative renders
an EA inadequate"); Native Ecosys. Council V. U.S.
428

F.3d 1233,

1246

(9th Cir.

Forest Serv.,

2005) ("So long as all reasonable

alternatives have been considered and an appropriate explanation is
provided as to why an alternative was eliminated,
requirement [for an EA or EIS]

the regulatory

is satisfied") (emphasis added); .t:!...:._

Idaho Cmty. Action Network, 545 F.3d at 1153(both EA and EIS must
consider all reasonable alternatives,

but EIS must provide more

detail and analysis of those alternatives);
Page 12 - OPINION AND ORDER

Native Fish Soc.

v.

Nat'l Marine Fisheries Servs., 992 F. Supp. 2d 1095, 1110

(D. Or.

2014) (holding

because

that

a

fish

hatchery EA was

inadequate,

"[w]here a feasible alternative would meet the project's purpose
and need, it should be considered")
BLM

also

improperly

places

the

burden

of

determining

reasonable project alternatives entirely on plaintiffs.

Indeed,

courts have held that agencies need only consider alternatives that
are "ascertainable and reasonably within reach."
Hodel,

803 F.2d 1016,

1021-22

means

that if plaintiffs fail

their

comments,

the

(9th Cir.

City of Angoon v.
Generally,

1986).

this

to raise a viable alternative

plaintiffs

cannot

later

object

subsequent EA failed to consider the alternative.
v . Pub . Citizen, 5 41 U , S . 7 52 , 7 6 4- 6 5

(2004 ) .

that

in
the

Dep't of Transp.
However,

the U.S.

Supreme Court and the Ninth Circuit recognize an exception to this
When

rule.

the

agency

clearly

has

independent

knowledge

of

specific issues or concerns, "there is no need for a commenter to
point them out specifically in order to preserve its ability to
challenge a proposed action."
v. Rumsfeld,

Id.

464 F.3d 1083, 1093

at 765;

'Ilio'ulaokalani Coal.

(9th Cir. 2006); see Friends of
I

the

Clearwater

v.

Dombeck,

222

F.3d

552,

559

(9th

Cir.

2000) ("Compliance with NEPA is a primary duty of every federal
agency; fulfillment of this vital responsibility should not depend
on

the

vigilance

and

limited

resources

of

environmental

plaintiffs") .
Although plaintiffs provided extensive public comment on the
need to preserve trees over 80 years old, BLM argues they did not
Page 13 - OPINION AND ORDER

I

·!

suggest the precise alternative they now raise: proceeding with the
planned variable retention harvest but on younger trees.
e.g., AR 2057, 2037-38, 4731-39, 4699-4702.
dispositive,

because BLM was aware,

alternative.

In fact,

However, this is not

well before the EA,

of that

in a February 2012 report describing the

Roseburg Pilot Project, Franklin and Johnson said they

~initially

planned to use previously harvested stands between 60 and 80 years
of

age,

given

our

controversial."

intent

AR 2314.

of

using

stands

that

They explained they

were

less

later chose

to

harvest older trees, because there was a limited selection of the
younger trees and

~some

stakeholders" wanted to harvest only trees

older than 80 years old.

AR 2314.

Thus, not only did BLM know of

the alternative of limiting variable retention harvesting to
under 80 years old,
Moreover,

the

t~ees

it was BLM's original plan for the project.
of

the

project's purpose and need, and BLM does not argue otherwise.

In

this context,

alternative

appears

reasonable

BLM failed to take a

~hard

in

look."

light

}lloreover,

BLM

should have at least acknowledged the alternative in the EA and
explained its reasons for rejecting it.

BLM's failure to consider

this known alternative was arbitrary and capricious in violation of
NEPA and APA.

B.

EIS Requirement

Plaintiffs also challenge BLM's decision not prepare an EIS.
Under NEPA, a government agency must prepare an EIS if a proposed
federal action could

~significantly

environment." 42 U.S.C.

§

affect the quality of the human

4332 (2) (c). Importantly, the significant

Page 14 - OPINION AND ORDER

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 Project v. Blackwood,

1212

(9th Cir.

1998).

161 F.3d 1208,

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. at
1212.
In
agencies

determining whether
and

"intensity."

courts

potential

should evaluate

40 C.F.R. § 1508.27.

effects
their

are

significant,

"context"

and

their

In assessing the intensity, or

the "severity of the impact," courts and agencies should consider
up to ten factors.

40 C.F.R.

10

§

1508.27 (b) . 10

A court may find

The Court only discusses relevant factors in this
opinion, but the full list of "intensity" factors is as follows:
(1) Impacts that may be both beneficial and adverse. A
significant effect may exist even if the Federal agency
believes that on balance the effect will be beneficial.
(2) The degree to which the proposed action affects public
health or safety.
(3) Unique characteristics .
. 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 .
. are likely to be
highly controversial.
( 5) The degree to which the possible effects .
. are
highly uncertain or involve unique or unknown risks.
(6) The degree to which the action may establish a precedent
for future actions with significant effects or represents a
decision in principle about a future consideration.
(7) Whether the action is related to other actions with
individually insignificant but cumulatively significant
Page 15 - OPINION AND ORDER

substantial risk of a significant effect based on just one of these
factors.

Ocean Advocates v. U.S. Army Core of Eng'rs,

402 F.

3d

846, 865 (9th Cir. 2004).
Plaintiffs argue that five factors support the preparation of
an EIS for the project:

(1) the project's highly controversial and

(2) highly uncertain effects, (3)the project's precedential effect
on future projects,
(5)

( 4)

its adverse effects on spotted owls,

potential violations of FLPMA and the NWFP.

Summ. J. i-ii.

1.

Controversiality. of the Project
claim BLM did not properly assess,

significance factors,
are

Pls.' JYiem. Mot.

The Court agrees that an EIS is required.

Plaintiffs

effects

A

project

40

highly controversial."
qualifies

as

likely

to

effect."

Nw.

Envtl.

Def.

Ctr.

v.

C.F.R.

§

be

highly

[its]

size,

Bonneville

Power

controversial if a "substantial dispute exists as to
or

among other

the degree to which the project's potential

"likely to be

15 0 8. 2 7 (b) ( 4) .

nature,

and

impacts. Significance exists if it is reasonable to
anticipate a cumulatively significant impact on the
environment. Significance cannot be avoided by terming an
action temporary or by breaking it do•tm into small component
parts.
(8) The degree to which the action may adversely affect
[sites/structures] listed in or eligible for listing in the
National Register of Historic Places or may cause loss or
destruction of significant scientific, cultural, or
historical resources.
(9) The degree to which the action may adversely affect an
endangered or threatened species or its habitat that has
been determined to be critical under the Endangered Species
Act of 1973.
(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(b).
Page 16 - OPINION AND ORDER

Admin.,

117

F.3d

1520,

1536

(9th

Cir.

1997).

Mere

public

opposition to a proposal does not render it highly controversial.
Id.

Rather,

"a substantial dispute exists when evidence,

raised

prior to the preparation of an EIS or FONSI casts serious doubt
upon the reasonableness of an agency's conclusions."

Nat'l Parks

& Conservation Ass'n v. Babbitt, .241 F.3d 722, 736 (9th Cir. 2001),

abrogated on other grounds by Monsanto Co. v. Geertson Seed Farms,
561 U.S. 139, 157
Here,

the

(2010)

record

(internal citations omitted).
provides

ample

evidence

of

controversy,

including observations from the project's own guiding scientists,
Franklin and Johnson.

BLM acknowledged the White Castle Project

would effectively remove more

than

160

acres

ranging in age from about 80-110 years old.
project

planning

documents

and

emails,

of

forest

AR 503.

Franklin

and

stands
Yet,

in

Johnson

repeatedly described the harvesting of trees older than 80 years as
"controversial."
"societal

AR 2310,

interest"

older trees),

2314,

2296-97;

see 18335

and "continuing legal battles"

6368-71. 11

In fact,

(describing
to preserve

they reported in pilot project

documents, that they deliberately chose a controversial strategy to
stimulate discussion:
Initially, we intended to do early successional harvests
in the less controversial previously harvested stands
(60-80 years of age). Ultimately we also applied it in
a natural older stand · ( 90-110 years of age) that had
experienced no past timber harvest, in part to stimulate
the dialogue regarding harvests in such forests.

11

Other project planning documents also describe the
practice as "controversial" and "highly controversial." AR 4014,
5636, 6368-71.
Page 17 -OPINION AND ORDER

AR 2310.
BLM

argues

that

the

project

designers

used

the

term

"controversy" to refer to mere social and political opposition and
not

to

"substantial

controversy."

dispute"

Def.'s

Resp.

or

Mot.

legitimate

Summ.

J.

"scientific

9-13.

Hov.rever,

scientific controversy appears to have accompanied the project from
its

inception.

The

2011

Northern

Spotted

Owl

Recovery

Plan

recommended applying Franklin and Johnson's techniques but also
described them as

"controversial."

AR 17 67 6.

The plan noted

differing views among scientists regarding the techniques'
on the spotted owl.

AR 17676.

as

"to

a

primary

goal

Morever, the Recovery Plan outlined

conserve

older

stands

that

occupied or contain high-value spotted owl habitat."
17684.

impact

are

either

AR 17682,

To that end, it suggested applying Franklin and Johnson and

their cohort's "active management" strategies to younger and less
diverse

forest

stands.

AR 17683-84.

Even BLM' s

own planning

documents noted ecological concerns about harvesting trees older
than 80 years.

AR 18335; 2290.

"most BLM stands

Franklin and Johnson noted that

over 8 0 years old have not been subjected to

timber harvesting," because "such stands have special significance
in conservation strategies for species associated with mature and
old forests,
vole] . "

such as the [northern spotted owl] and the [red tree

AR 2290.

Furthermore,

during the

formulation

of the

project, FWS proposed and later approved designating project land
as

critical habitat

roosts,

for

the

northern

spotted owl

and forages in trees over 80 years old.

Page 18 - OPINION AND ORDER

which

AR 6468,

nests,
6472.

Acknowledging,

in part,

the ecological need to retain dwindling

stocks of older trees and spotted owl habitat, Franklin and Johnson
initially planned to only harvest forest under 80 years old.

AR

2310, 2314.
Members of the public and scientists also raised ecological
concerns about ELM's choice to harvest trees over 80 years old.
4884-99

(public comment),

1615.

AR

ELM considered in its decision-

making process a scientific article from the "Journal of Forestry"
that criticized Franklin and Johnson's pilot project strategies
and, in particular, their failure to adequately protect trees over
80 years old.

AR 16230-39; Def.'s Resp. Mot. Summ. J. 11.

Clearly, ELM recognized the highly controversial nature of the
project well before issuing the FONSI.

The Recovery Plan,

the

critical habitat proposal, comments from the public and scientists,
and Franklin and Johnson's own reports demonstrated the existence
of

"a

substantial

dispute"

casting

"serious

doubt

upon

reasonableness" of ELM's decision to harvest forest stands
years old.
the

FONSI,

legitimate

ove~

Nat'l Parks & Conservation Ass'n, 241 F.3d at 736.
ELM

carried

the

controversy but

burden

failed

to

of
do

showing
so

in

there
its

see Nat'l Parks & Conservation Ass'n,

241 F.3d at 736

burden to convincingly refute evidence of controversy) .

80
In

was

terse

paragraph acknowledgement of public comment and concerns.
_,

the

no
one-

AR 1009;

(agency has
The Court

does not express an opinion about the merits of the ELM's decision
to harvest designated critical habitat and trees older than
years.

80

However, the Court finds that ELM's failure to acknowledge

Page 19 - OPINION AND ORDER

the "highly controversial" nature of that decision was arbitrary
and capricious

in light of

the

evidence

in the

record.

This

significance factor weighs in favor of an EIS.
2. Uncertain Effects

Plaintiffs also argue BLM failed to properly consider "the
degree to which the possible effects .
involve unique or unknown risks."
Ninth Circuit explains,

are highly uncertain or

40 C.F.R.

§

1508.27(b) (5).

The

"The purpose of an EIS is to obviate the

need for speculation by insuring that available data are gathered
and analyzed prior to the implementation of the proposed action .
the

'hard

look'

must

be

taken

before,

not

after,

environmentally-threatening actions are put into effect."

the
Nat'l

Parks & Conservation Ass'n, 241 F.3d at 732-33.
Here, a key uncertainty is whether the project will benefit
spotted owls

and

their

habitat

in

the

long

term,

as

BLM

and

defendant-intervenors repeatedly assert. Def.'s Resp. Mot. Summ. J.
27;

Def.' s Reply 13-14;

The

2011

testing

Def. -Ints.'

Revised Northern
out

Franklin

and

Reply 4-6; AR 746-47,

Spotted Owl
Johnson's

Recovery Plan
"ecological

restoration" techniques as a way "to address .
about

their

effects

on

spotted

owls

as

well

disturbance patterns and climate change issues.
very nature as part of a pilot,

6410.

suggested

forestry

and

uncertainty"
as

on

AR 17676.

shifting
By its

the White Castle Project tests

something new and uncertain. 12 Moreover, the project's experimental

12

Along these lines, defendant-intervenors define a "pilot
project" as "something 'done as an experiment or test before
Page 20 - OPINION AND ORDER

use

of

Franklin

and

Johnson's

techniques

on

older

trees

that

provide critical spotted owl habitat only increases uncertainty.
In

its

brief,

BLM

quotes

almost

an

entire

paragraph

from

the

Recovery Plan to argue that the plan supports projects such as
1il7hi te

Castle

specially
Def.' s

in

forest

de signa ted

Reply

stands

late

80

years

successional

(quoting

14

over

AR

old

forest

and

reserves

However,

17683-84).

even

in

( LSRs) .

BLM

omits

sentences that stress the need for more research about the effects
of

applying

Notably

absent

~Research

on

Franklin
is

and

the

Johnson's

paragraph's

methods
last

to

older

sentence

iAlhich

forests.
states,

and monitoring on the specific effects of such treatments

spotted

owls

and

their

prey

is

needed

and

should

evaluate

effects on both spotted owl recovery as well as broader forest
management goals."

AR 17684.

Additionally,

in a February 2012

report on pilot projects in Southwest Oregon, Franklin and Johnson
noted

the

need

reviews can help

for

further

research,

stating

that

~scientific

. undertake analysis of the potential for some

new alternatives, such as .

. ecologically-based timber harvests

within Critical Habitat for the Northern Spotted Owl"-- precisely
what is proposed for the White Castle Project.
BLM's

conclusion

uncertainty regarding
counter

to

the

in

the

[the]

evidence

in

FONSI

effects"
the

that

AR 2274.
~there

is

little

of the pilot project

record.

The

experimental pilot project is highly uncertain,

outcome

runs

of

this

and thus,

this

introducing something more widely.'" Def.- Ints.' Resp. f/lot. Summ.
J. 14 (quoting Oxford English Dictionary).
Page 21 - OPINION AND ORDER

significance factor favors preparation of an EIS.
Precedential Effect

3.

Plaintiffs argue that another factor weighs in favor of an
EIS: "the degree to which the action may establish a precedent for
future actions with significant effects or represents a decision in
principle

about

a

future

consideration."

40

C. F. R.

§

1508.27(b) (6).

Generally, this factor is "insufficient on its own

to

a

demonstrate

significant

environmental

impact"

unless

the

approval of the project is binding on future decisions regarding
other actions.

Anderson v. Evans,

2004)

the factor may still support a need for an EIS.

However,

371 F.3d 475,

493

(9th Cir.

Id.
BLM correctly points out that the project will not bind any
other

future

analysis.

BLJVl actions;

Def. 's

Resp.

they would still be
Mot.

SUmm.

J.

2 8.

subject to NEPA

However,

BLM also

emphasizes repeatedly the project's role as part of a larger series
of "pilot projects" aimed at "inform[ing] long-term planning" for
management of BLM lands in Oregon and California.
4947 (press release).
pilot

project

and

its

AR 6410

(EA),

Franklin and Johnson described the Roseburg
counterpart

important in shaping the

in

the

Medford

district

as

development and implementation of the

Revised Recovery Plan for the Northern Spotted Owl.

.1\R 18336.

"The insights learned [in the two projects] could assist in shaping
the role for active management and ecological restoration that has
been recognized in the [Northern Spotted Owl] Recovery Plan."

Page 22 - OPINION AND ORDER

AR

18336.

Project materials describe the pilot projects as test of

new harvest methods and "new policies" that could supplant ELM's
current "risk-adverse strategy" of avoiding regeneration harvesting
and other "active management" methods.
White

Castle

Project

will

not

have

projects, but it will, by design,
strategies

moving

precedential

factor

forward.
alone

AR 644.
binding

impact

on

future

shape BLM forestry methods and

Although,

is

Approval of the

not

in

this

dispositive,

it

case,

the

supports

the

conclusion that an EIS is necessary.

4.

Effect on the Northern Spotted Owl

Another significance

factor

is

"[t] he degree

to which the

action may adversely affect an endangered or threatened species or
its habitat that has been determined to be critical under the
Endangered Species Act of 1973."

40 C.F.R. § 1508.27(b) (9)

Here,

the FWS BiOp concluded that the project would "adversely affect"
the northern spotted owl, its critical habitat, and its prey, but
it

would not

species.

likely

jeopardize

the

continued existence

AR 1351, 1412-13, 1421-23, 1029.

of

the

Plaintiffs argue the

adverse effects are sufficient to merit an EIS, while BLM contends
that the effects are not significant given that the project would
not endanger the species' survival.

Def.'s Resp. Mot. Summ. J. 24

(citing AR 1423).
Courts

have

held that

"a project

need not

jeopardize

the

continued existence of a threatened or endangered species to have
a

'significant'

effect"

for

Page 23 - OPINION AND ORDER

the

purposes

of

NEPA.

Cascadia

Wildlands v. U.S. Forest Serv., 937 F. Supp. 2d 1271, 1282 (D. Or.
2013), appeal dismissed (Feb. 27, 2014); Klamath-Siskiyou Wildlands
Ctr. v. U.S. Forest Serv.,
2004) . 13

In

EPIC,

the

373 F. Supp. 2d 1069, 1080

Ninth

Circuit

viability is the relevant standard for
the Endangered Species Act,
under NEPA.

recognized
assess~ng

(E.D. Cal.

that

species

a project under

but the standard is adverse effect

Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d

1005, 1012 (9th Cir. 2006) ("EPIC"); see Forest Serv. Employees for
Envtl. Ethics v. U.S. Forest Serv., 726 F. Supp. 2d 1195, 1213 (D.
Mont. 2010)
Here,
northern

although the White Castle Project may not drive the
spotted

owl

to

the

verge

of

extinction,

nonetheless have an adverse effect on the species.
would

remove

187

acres

of

forest,

all

or

almost

it

would

The project
all

of

it

designated critical habitat for the northern spotted owl and 153
acres of it suitable nesting,

13

roosting and foraging habitat.

AR

Defendant-intervenors attempt to distinguish those
cases, claiming the courts found a significant effect only
because those projects would have resulted in the taking of
spotted owl pairs, unlike in this case where there is no
projected taking.
Def.-Ints.' Resp. Mot. Summ. J. 9 n.3.
Yet,
defendant-intervenors then undermine this point by arguing that
the Court must consider "the degree of adverse effect on a
species, not the impact on individuals of that species." Id. at
8. (quoting Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451
F.3d 1005, 1010 (9th Cir. 2006) ("EPIC")). EPIC found that the
logging of 14 acres of suitable nesting roosting, and foraging
habitat and the projected taking of three owl nests did not
amount a significant effect for NEPA purposes. 451 F.3d at 101011. By contrast, this project involves no projected taking of
owls but would log 153 acres of suitable nesting, roosting 1 and
foraging habitat.

Page 24 - OPINION AND ORDER

1028-29, 1359, 365-66, 748. 14

The harvest is contained within three

overlapping spotted owl home ranges.

AR 748,

512.

It includes

portions of one core area 15 but no nests or projected taking of
spotted owls.

AR 7 4 8 I

6 4 6 8- 7 0 .

the loss of home range habitat,

In the BiOp,

FWS concluded that

in particular reductions in the

core area, would "adversely affect" northern spotted owls, as would
the

loss

of

habitat

for

owl

prey

such

as

red

tree

voles

and

northern flying squirrels. AR 1412-13, 1421, 478-79.
BLM emphasizes the small size of the project,

arguing that

"the minimal amounts of [spotted owl habitat] that will be impacted
by the White Castle Project simply cannot be viewed as significant

Notably, BLM has f~iled to provide clear information on
this point. At oral arguments, the Court asked BLM to specify
the precise number of acres of critical habitat it would harvest
in the White Castle Project, but BLM failed to do so.
Instead,
BLM stated that 82% of the project area would be critical
habitat. A subsequent review of record showed the 82% figure was
not accurate since it combined data from the White Castle Project
and the non-controversial Buck Rising Project. AR 479.
Thus,
the information BLM supplied the Court did not reflect the true
impact of the White Castle Project alone.
BLM also did not
supply a project-specific figure in its briefs, nor in the
project's FONSI, EA, or decision document.
Environmental groups
have repeatedly commented that the project would remove 187 acres
of critical habitat, but BLM has neither confirmed nor denied the
number in written responses, instead referring groups to the EA
and decision document which do not provide the information. AR
76-77, 359, 365-66, 748. At oral argument, it was established
that the White Castle Project would harvest 153 acres of
suitable nesting, roosting, and foraging habitat, one type of
critical habitat.
However, it remains unclear how many acres of
critical habitat suitable for dispersal activities would be
logged.
See supra note 5.
14

15
The BiOp explains that "spotted owls are 'central place'
animals with the core use area (the area closest to the nest)
being the focal area." AR 1412.

Page 25 - OPINION AND ORDER

for the purposes of NEPA in the context of the overall amount of
habitat on federal lands."

Def.'s Resp. Mot.

Summ.

J.

25.

The

Court recognizes that the degree of impact to the spotted owl might
not be great enough, on its own, to require more study.

However,

this factor, combined with the others, requires an EIS.

5.

Violation of Laws or Other Requirements

An additional

factor

is

"[w] hether the action

threatens a

violation of Federal, State, or local law or requirements imposed
for

the

protection

1508.27 (b) (10) .

of

the

environment."

40

C. F. R.

§

As discussed in the next section, the Court does

not reach the issue of ELM compliance with FLPMA with regard to red
tree

vole

sites.

Moreover,

the

Court

need

not

address

this

particular factor given that the other significance factors suffice
to establish a need for an EIS.
The Court recognizes the deference afforded to an agency, and
when considered individually,
require an EIS.
project may be

several

However, when considered together, they do.
relatively small

affect the northern spotted owl.
test

with

of the factors might not

effects

that

are

in

size but

it will

The

adversely

Moreover, it represents a pilot

likely to be

highly controversial,

highly uncertain, and influential on future project planning.

C.

Hard Look Requirement

Under NEPA, an agency must take a "hard look" at a project's

Page 26 - OPINION AND ORDER

environmental consequences . 16

In assessing whether the requirement

is met, a court must make "a pragmatic judgment" of whether an EA
or

EIS' s

"form,

decision-making

content
and

and

preparation

foster

public

informed

'Ilio'ulaokalani Coal., 464 F.3d at 1094.
taken objectively and in good faith,

both

informed

participation."

"The 'hard look' must be

not as an exercise in form

over substance, and not as a subterfuge designed to rationalize a
decision already made."
F.3d 472,

491

(9th Cir.

W. Watersheds Project v. Kraayenbrink, 632
2011).

The agency must discuss adverse

impacts and not minimize a project's negative effects.
Island Inst. v. U.S.
2006),

Forest Serv.,

442 F.3d 1147, 1159

Id.; Earth
(9th Cir.

abrogated on other grounds by Winter v. Natural Res. Def.

Council,

Inc.,

555 U.S.

7 (2008).

Crucial to determining whether an agency took a "hard look" is
whether the agency supplied "a 'convincing statement of reasons' to
explain why" it concluded the project's impacts were insignificant

16

Courts frequently treat the requirement that agencies take
a "hard look" at a proposed project's consequences as simply
another formulation of the "arbitrary and capricious" standard of
review in NEPA cases. See, e.g., Neighbors of Cuddy Mountain v.
U.S. Forest Serv., 137 F.3d 1372, 1376 (9th Cir. 1998) (hard look
analysis, also called "rule of reason," essentially the sam~ as
the "arbitrary and capricious" standard); In Def. of Animals,
Dreamcatcher Wild Horse & Burro Sanctuary v. U.S. Dep't of
Interior, 751 F.3d 1054, 1068 (9th Cir. 2014).
Others address it
separately as a measure of the overall adequacy of an EA or EIS.
See, e.g., Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land
Mgmt., 387 F.3d 989, 992-93 (9th Cir. 2004); Churchill Cnty. v.
Norton, 276 F.3d 1060, 1071 (9th Cir. 2001).
Here, the Court
need not determine the standard's place in the NEPA framework to
find that BLM failed to take the requisite "hard look" at the
White Castle Project.

Page 27 - OPINION AND ORDER

and did not prepare an EIS.
1208 at 1212.

Blue Mountains Biodiversity, 161 F.3d

Here, ELM's FONSI recited each significance factor,

but failed to adequate explain its conclusion that none of them
were significant.
significance

For example, the FONSI addressed the controversy

factor

in

three

short

summarizing the project's background.
without

further

explanation

that

paragraphs,

uncertainty

significance

of

them

BLM then stated broadly and

none

of

the

project's

factor,

BLM

public

AR 1009.

comments "established scientific controversy."
the

two

As for

only

specifically

addressed the issue of climate change, and did not mention public
concerns

about

removal

of

spotted

owl

habitat.

AR

1009-10.

Although BLM listed out reasons in the project's FONSI, they were
largely conclusory and did not demonstrate that BLM took a "hard
look" at the project's potential effects.
Furthermore, as discussed in the next section, BLM failed to
take a "hard look" at evidence of red tree vole
project area.

after it is too late to correct."
F.3d 552, 557 (9th Cir. 2000).
species

Nonetheless,

sites in the

"NEPA's purpose is to ensure that the agency will

not act on incomplete information,

protected

~est

six

only to regret its decision
Friends of the Clearwater, 222

BLM received detailed data about a

months

before

the

EA

was

issued.

BLM failed to take a hard look at the data or the

credibility of its source.
The Court finds

BLM violated NEPA by not

issuing an EIS,

failing to consider a reasonable range of alternatives in the EA,

Page 28 - OPINION AND ORDER

and by failing,

in multiple respects,

to take a hard look at the

project's environmental effects.
II.

Red Tree Vole NEPA and FLPMA Claims
Plaintiffs argue that BLM violated NEPA and

FLP~ffi

by failing

to comply with NWFP requirements for the survey and management of
red tree vole sites in the project area . 17
planning

and

management

"develop, maintain,
and,

once

of

and when

they are

public

lands

app~opriate,

in place,

to

act

in

FLP~lA

and

governs BLM' s

requires

BLM

to

revise land use plans"
accordance

with

them.

Oregon Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1125 (9th
Cir. 2007); 43 U.S.C. §§ 1732 (a); 43 C.F.R. § 1610.5-3.
governing

land use plan is

Resource

Management

Plan

requirements of the NWFP.

Here, the

the NWFP and the Roseburg District
("~lP")

which

incorporates

the

The plans designate the red tree vole as

a Category C "uncommon" species. AR 9948,

9987.

As such, BLM is

required to "manage all known sites" until high-priority and nonhigh-priority red tree vole sites are determined.
17

AR 9948, 10014-

In support of their FLPMA claims, plaintiffs cite to
declarations from Nicholas Sobb of Northwest Ecosystems Survey
Team ("NEST").
Pls.' Reply 32. BLM moves to strike the
declarations as extra-record evidence.
Def.'s Reply 24.
Plaintiffs do not address BLM's argument and, as such, have not
shown that Sobb's declarations satisfy any exception to record
review rule under the APA.
See Lands Council v. Powell, 395 F.3d
1019, 1029-30 (9th Cir. 2005-)-.- However, the Court does not rely
on the evidence to reach its conclusions. Moreover, the Court is
capable of independently resolving conflicts in the record and
questions of admissibility, and therefore declines to strike the
evidence at issue.
See Oregon Natural Desert Ass'n v. Sabo, 854
F.Supp.2d 889, 925 (D.Or. 2012) (denying as moot defendants'
motion to strike where the "court has not considered the
extra-record evidence offered by plaintiffs") .

Page 29 - OPINION AND ORDER

16. 18

The amended NWFP defines a "known site" as the "historic and

current

location

of

a

species

reported by

a

credible

source,

available to field offices, and that does not require additional
species

verification

species."

AR 10D14.

or

survey

by

the

Agency

to

locate

the

The plan adds that a "credible source" may

include "amateurs" and "private individuals" provided they have
sufficient "academic training and/or demonstrated expertise"
identifying the species.

in

AR 10014.

At issue here are the findings of amateur citizen surveyors
who

reported

active

red

tree

project's nine units, unit 31A.

vole

nest

sites

in

one

of

the

Volunteers with the organization

Northwest Ecosystem Survey Team ("NEST") climbed trees, conducted
pre-decisional surveys,

and submitted to BLM,

on Oct.

11,

2011,

evidence of four active red tree vole nest sites in Unit 31A.
4008-11,

3006.

Their submissions

AR

included GPS coordinates and

samples of resin ducts, fecal pellets, and cuttings.

AR 4008.

An

accompanying letter described NEST volunteers as receiving 40 hours
each of training from biologists and professionals,
qualifications.
custody
inquiry;

AR

procedures;

4008.

It

provided

listed previous

also
contact

submissions

among other

described NEST's
information
of data to

for

Coos

chain

of

further
Bay BLM,

Willamette National Forest, and Umpqua National Forest; and named

18

No such determination occurred here.
The EA proposed
designating project unit 25A as a non-high-priority site but did
propose such a designation for the area in dispute, unit 31A. AR
6598-6609.

Page 30 - OPINION AND

ORD~R

individual

references,

including

an

Oregon

State

University

professor and a wildlife biologist with the Willamette National
Forest.

AR 4008,

4011.

Plaintiffs argue that the nesting sites

identified by NEST qualified as "known sites," and BLM failed to
manage them in violation of the NWFP, FLPMA, and NEPA.
Mot. Summ. J. 38-40.

Pls.' Mem.

BLM acknowledges the amended NWFP required it

to manage known vole sites in Unit 31A, but argues that NEST was
not a "credible source" of known site information.

Def.'s Reply

22-23; Def.'s Resp. Mot. Summ. J. 33-34.
BLM' s

argument

before

the

Court

echoes

its

project documents for not considering NEST data.

rationale
AR 3006,

in

6480.

The EA stated: "NEST members' training, their credentials, and the
chain of custody of the samples are self-reported and have not been
verified.

For these reasons, their reported site locations

are not considered to be protocol survey data."

AR 6480,

3006.

BLM became aware of NEST's survey plans in June 2011 due to NEST's
participation in a different BLM project in Coos Bay.
August

2011,

BLM surveyors

and biologists

AR 4729.

In

interacted with NEST

volunteers on various occasions at the project site and notified
BLM project leaders of their presence.

AR 4309, 4314-20.

Finally,

BLM received the NEST data and letter in October 2011-- six months
before BLM issued the EA.

AR 2613-16; 4309.

In that time, it does

not appear from the record or pleadings that BLM asked NEST for
more

information

qualifications

or

or
the

otherwise
sites

Page 31 - OPINION AND ORDER

even

sought
though

to
the

verify

NEST's

coordinates

were

provided and the sites marked.

AR 3006,

6480.

In March 2012,

a

NEST leader emailed the ELM field manager in charge of the project,
inquired how the agency was using the NEST data,

and offered to

submit more information or personally lead ELM surveyors to the
sites.

AR 2615-16.

The ELM Field Manager declined to respond to

the inquiry about the use of NEST data or to receive any additional
information until after release of the EA.
It is debatable whether ELM's
constitutes

a

Regardless,

take

at

a

"hard

rejection of NEST's

violation of the Nlti/FP

manage "known sites."
look"

a

AR 2615.

requirement

to

surveys

survey and

NEPA mandates that an agency

proposed

project's

environmental

consequences, adequately considering every significant aspect, and
informing

the public

of its

reasoning and conclusions.

Earth

Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300-01 (9th Cir.
2003);

Baltimore Gas

Inc., 462 U.S. 87, 97
coherent

and

&

Elec.

(1983)

comprehensive

Co.

v.

Natural Res.

Def.

Council,

NEPA "emphasizes the importance of
up-front

environmental

analysis

to

ensure informed decision making to the end that the agency will not
act on incomplete information." Ctr.

for Biological Diversity v.

U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir. 2003)

Here, NEPA

did not necessarily require ELM to accept the NEST data or even to
independently verify it, but it required appropriate consideration
of the data and a coherent explanation for rejecting it.

Instead,

ELM relied on circular reasoning to reject NEST data, arguing the
data was

"self-report~d"

and unverified but rejecting efforts by

Page 32 - OPINION AND ORDER

NEST to provide such
explanation,

BLM declined, without adequate

~erification.

to consider possible impacts to a species protected

under the NWFP.

In doing so,

BLM made a decision that was not

"fully informed and well-considered," and BLM failed to "articulate
a rational connection between the facts found and the conclusions
reached."
did

not

Sierra Club, 510 F.3d at 1023. The Court finds that BLM
take

rejection

a

of

"hard

NEST

look"

data

at

environmental

without

sufficient

impacts,

and

consideration

its
or

explanation was arbitrary and capricious in violation of NEPA.
III. Remedies
The APA states that a reviewing court shall "hold unlawful and
set aside agency action, findings, and conclusions found to be
. arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law."

5 U.S. C ..·§ 7 0 6 ( 2) (A) ; see Sierra Forest

Legacy v. Sherman, 646 F.3d 1161, 1184-85 (9th Cir. 2011).
basis,

On this

this Court holds unlawful and vacates ELM's analysis and

approval of the White Castle Project. 19
Plaintiffs

also

ask

the

Court

to

grant

injunctive

relief

halting the White Castle Project until BLJYI complies with NEPA.
Pls.' Mot. Summ. J. 2-3.
violation,

However, even when a court finds a NEPA

"an injunction should issue only if the traditional

19

Despite the mandatory language of the APA, the Ninth
Circuit has held that in limited circumstances, the court may
leave in place an action that violates the APA but only if
"equity demands" it.
Idaho Farm Bureau Federation v. Babbitt, 58
F.3d 1392, 1405 (9th Cir. 1995).
The Court has analyzed the
equities and finds no such circumstances here.

Page 33 - OPINION AND ORDER

four-factor test [for an injunction] is satisfied."

Sierra Forest

Legacy,

U.S.

646

F.3d

at

1184

(quoting Monsanto,

(internal quotation marks omitted) . 20

561

at

157)

Moreover, the Supreme Court

recently held that recourse to the "additional and extraordinary
relief

of

an

injunction"

was

not

warranted

if

a

less

drastic

remedy, such as vacatur of the offending action, was sufficient to
redress the plaintiff's injury.
for Food Safety v. Vilsack,
2010).

Monsanto, 561 U.S. at 165-66; Ctr.

7 34 F.

Supp.

2d 94 8,

954

(N.D.

Cal.

Here, the vacatur of ELM's inadequate EA and authorization

of the White Castle project will provide sufficient relief, since,
by law, ELM cannot proceed with the project until it complies with
Plaintiffs have not provided evidence to the contrary.

NEPA.

As

such, the Court declines to issue an injunction.
Plaintiffs also move for an award of costs and attorneys' fees
under the Equal Access

to

Justice Act.

28

u.s.c.

§

2412.

A

decision concerning attorney fees and costs will issue at a later
date, following a proper motion. See 28 U.S.C. § 2412(d) (1) (B).
CONCLUSION
For above reasons
Summary

Judgment

(Doc.

the Court GRANTS
23)

20

as

to

the

Plaintiffs'
NEPA

claims

Motion
and

for

DENIES

Under the four-factor test, the moving party must show
" ( 1) that it has suffered an irreparable injury; ( 2) that
remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering
the balance of hardships between the plaintiff and defendant, a
remedy in equity is warranted; and (4) that the public interest
would not be disserved by a permanent injunction." Monsanto, 561
U.S. at 156-57; Abbey, 719 F.3d at 1054.

Page 34 - OPINION AND ORDER

Defendant
Judgment

and
(Docs.

Defendant- Intervenors'
28,

27).

Cross-Motions

for

Summary

The Court SETS ASIDE the White Castle

Project's authorization, holding that BLM violated NEPA and APA.
IT IS
Dated this

Ann Aiken
United States District Judge

Page 35 - OPINION AND ORDER