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
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