Utah Environmental Congress v. MacWhorter et al
MEMORANDUM DECISION that UECs request that the court reverse approval of the Mt. Dutton Project is DENIED. UEC has not demonstrated that the approval of the Mt. Dutton Project was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. Signed by Magistrate Judge Samuel Alba on 10/14/2011. (asp)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
UTAH ENVIRONMENTAL CONGRESS,
Case No. 2:08-CV-118-SA
ROBERT MacWHORTER, in his
official capacity as Forest
Supervisor for the Dixie
National Forest; GAIL KIMBALL,
Chief of the Forest Service;
and UNITED STATES FOREST
MEMORANDUM DECISION AND
Before the court is an action brought by Plaintiff, Utah
Environmental Congress (“UEC”), seeking reversal of the approval
by Defendant Robert MacWhorter of the Mt. Dutton Vegetation
Management Project (“Mt. Dutton Project”) on the Dixie National
UEC claims that the approval of the Mt. Dutton
Project violates the National Environmental Policy Act (“NEPA”),
the National Forest Management Act (“NFMA”), and the regulations
implementing those laws.
Having carefully reviewed the parties’ pleadings, the law,
and having heard oral arguments, the court concludes that UEC has
not shown the approval of the Mt. Dutton Project was arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.
Accordingly, UEC’s request for the court to
reverse the Mt. Dutton Project’s approval is denied.
The Mt. Dutton Project area is located within the Mount
Dutton Management Unit of the DNF.
(Doc. 7, the certified copy
of the Administrative Record relating to the Mt. Dutton Project
(“AR”) 14013 (map).)
The project area consists of approximately
5,490 acres and lies approximately fifteen air miles northeast of
Several years ago, the project area suffered a spruce beetle
infestation that killed 90 percent of the Engelmann spruce trees
that were at least six inches in diameter at breast height and
130 Engelmann spruce trees that were at least eight inches in
diameter at breast height.
Although the spruce
beetle has killed the trees and moved on (AR 14051), this major
loss of the large Engelmann spruce trees has caused substantial
changes both inside and outside of the project area (AR 13815,
13816, 13829, 13837 (photographs)).
During the spruce beetle epidemic in 2002, a prescribed
burn, known as the Sanford Fire, got out of control and burned
72,000 acres within the DNF.
(AR 12258-61, 14035.)
Approximately 29,000 of these acres were within the Mount Dutton
The remaining burned acres are
located in the DNF’s other management units (AR 3451); however,
the Sanford Fire did not burn any acres within the Mt. Dutton
Project area (AR 3453).
In addition to consuming vegetation, the
Sanford Fire had further impacts on water quality and soils.
example, the fire decreased shade over streams, which caused an
increase in water temperature (AR 14063), and the decrease in
vegetation also led to erosion, which degraded streams below the
Given the consequences of the Sanford Fire that
occurred outside of the Mt. Dutton Project area, the DNF
determined that it needed to analyze whether to remove the
substantial amount of fire fuel in the project area to reduce the
risk of a future catastrophic fire.
In determining what action to consider to reduce the fire
danger, the DNF held public meetings and offered a public field
trip into the area to obtain public comment.
UEC was among those who provided public comments.
(AR 1334-1488, 1492-93.)
After receiving public comment, the DNF prepared a 102-page
Environmental Assessment (“EA”) to analyze the impacts of three
alternative solutions to the fire hazard.
First, under the “no
action” alternative, the DNF would leave the project area in its
action,” the DNF would:
Second, under the “proposed
(1) harvest dead Engelmann spruce trees
on 836 acres within the project area (AR 14021); (2) authorize a
prescribed burn of approximately 296 acres to allow for new
growth (id.); and (3) replant Engelmann spruce trees in
approximately 427 acres of the project area (id.).
“Alternative A,” the DNF would: (1) harvest dead Engelmann spruce
trees over 691 acres of the project area (id.); (2) authorize a
prescribed burn of approximately 288 acres (id.); and (3) replant
Engelmann spruce trees in 419 acres of the project area (id.).
The stated purpose and need for the project is to
return the forest structure to a live forest
where a diverse mixture of conifer and aspen
trees occupy at least 150 live trees per acre
. . . providing approximately 9.6 million
board feet of salvage timber for commercial
sale . . . reduce undesirable fuel buildup by
a combination of post-treatment  slash (lop
and scatter), prescribed burning, slash pile
burning, and burning the log landings. . . .
[R]educe open road density from 3.42
miles/square mile to 2.63 miles/square mile
within the wildlife habitat effectiveness
Once completed, the DNF distributed the EA for public
comment to interested parties and the local news media. (AR
The DNF received several comments, including those from
After reviewing the comments (AR 14146), on
February 23, 2007, Defendant DNF Supervisor Robert MacWhorter
signed and issued the DNF’s EA with responses to public comment
and its Decision Notice and Finding of No Significant Impact
(“DN/FONSI”); however, because the Forest Service’s 2005 planning
regulations, to which the DNF cited in its DN/FONSI, were
enjoined, the DNF withdrew the DN/FONSI (AR 13885).
On May 9,
2007, after the 2005 planning regulations were enjoined, the
Forest Service directed its offices to employ 36 C.F.R. §
On June 15, 2007, Kevin
Schulkoski, acting for Supervisor MacWhorter, signed the reissued
DN/FONSI and issued a revised EA.
(AR 13981-14105, 15394-402.)
UEC is challenging the second, June 15, 2007 DN/FONSI in this
On August 3, 2007, UEC filed its administrative appeal of
the June 15, 2007 DN/FONSI.
On September 13,
2007, the Appeal Deciding Officer affirmed the June 15, 2007
The September 13, 2007 decision
constitutes the “final agency action” for purposes of judicial
review (AR 15394).
See 5 U.S.C. § 704.
On February 13, 2008, UEC filed its complaint in this case
seeking judicial review under the Administrative Procedure Act
(“APA”) of the Department of Agriculture’s September 13, 2007
final decision, and the case was assigned to United States
Magistrate Judge Samuel Alba.1
filed its opening brief.
On June 16, 2008, UEC
Defendants MacWhorter, Gail
Kimball, and the United States Forest Service (“Forest Service”)
(collectively “Defendants”) filed a response brief on July 22,
On August 8, 2008, UEC filed its reply brief.
The parties presented oral arguments to the court on
December 5, 2008.
The parties consented to presiding magistrate judge
jurisdiction on February 18 and 20, 2008. (Doc. 4.)
On December 5, 2008, Defendants filed a Notice of
2009, Defendants filed an Errata.
A month later, on January 7,
On July 10, 2009,
UEC filed a Notice of Supplemental Authority (Doc. 48), which
Defendants responded to on July 15, 2009 (Doc. 49).2
STANDARD OF REVIEW
The court reviews the Forest Service’s approval of the Mt.
Dutton project as a final agency action under the APA because
neither NEPA nor NFMA provides a private right of action.
Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006).
Under the APA, the court must affirm the DNF’s approval of the
DNF Project unless the decision was “‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.’”
Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1268 (10th
Cir. 2004) (quoting Utahns for Better Transp. v. U.S. Dep’t of
Transp., 305 F.3d 1152, 1164 (10th Cir. 2002), modified on reh’g,
319 F.3d 1207 (10th Cir. 2003)); see also 5 U.S.C. § 706(2)(A).
This is a narrow and deferential standard, and “‘the court is not
empowered to substitute its judgment for that of the agency.’”
On July 27, 2009, UEC filed a Motion to Strike Defendants’
Response to its Notice of Supplemental Authority. (Docs. 50,
51.) Defendants opposed that Motion to Strike on August 11,
2009. (Doc. 52.) On August 24, 2009, UEC filed a stipulated
motion to withdraw its Motion to Strike and Defendants’ Response
to that motion. (Doc. 53.) The court granted the motion to
strike on March 26, 2010. (Doc. 55.)
Utah Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1188 (10th Cir.
2006) (citation omitted).
Furthermore, an “agency’s interpretation of its own
regulations, including its procedural rules, is entitled to great
Bar MK Rances v. Yuetter, 994 F.2d 735, 738 (10th
Deference to the agency is also “‘strong where the
challenged decisions involve technical or scientific matters
within the agency’s area of expertise.’”
Utah Envtl. Cong. v.
Russell, 518 F.3d 817, 824 (10th Cir. 2008) (quoting Utah Envtl.
Cong., 443 F.3d at 739).
“The agency, not the reviewing court,
is entrusted with the responsibility of considering the various
modes of scientific evaluation and theory and choosing the one
appropriate for the given circumstances.”
Utah Envtl. Cong., 439
F.3d at 1188 (quotation marks and citations omitted).
“An agency’s decision will be deemed ‘arbitrary and
capricious “if the agency . . . entirely failed to consider an
important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or
is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise,”’”
Utah Envtl. Cong.
v. Troyer, 479 F.3d 1269, 1280 (10th Cir. 2007) (quoting Utah
Envtl. Cong., 443 F.3d at 739 (quoting Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))), “if
the agency failed to base its decision on ‘consideration of the
relevant factors,’ or if ‘there has been a clear error of
judgment’ on the agency’s part,” id.
Before analyzing UEC’s argument, the court reviews the
applicable law in this case.
National forests are established and administered for
outdoor recreation, range, timber, watershed, and wildlife and
See 16 U.S.C. § 528.
The management of the
national forests is governed by NFMA, 16 U.S.C. §§ 1600-1687.
Under NFMA, the Forest Service is required to develop and
maintain forest management plans for each unit of the National
See 16 U.S.C. § 1604(a).
Forest plans govern the
management of the national forests, and all uses of the national
forests must be consistent with the corresponding plans.
Consequently, the Dixie National Forest Plan (“the DNF
Plan”) governs the activities within the DNF at issue in this
Where, as here, the DNF makes a project-specific decision
under the DNF Plan, the DNF also must comply with NEPA, 42 U.S.C.
§§ 4321 to 4347.
To comply with NEPA, an agency must prepare an
Environmental Impact Statement (“EIS”), an EA, or apply a
See Utah Envtl. Cong., 518 F.3d at 821.
If the agency determines the proposed action will significantly
affect the environment, or if substantial questions are raised as
to whether the proposed action may significantly affect the
environment, an EIS must be prepared.
See McKeen v. United
States Forest Service, 615 F.3d 1244, 1248 n.3 (10th Cir. 2010).
The agency must prepare an EA if an agency is uncertain whether a
proposed action will significantly affect the environment.
Utah Envtl. Cong., 518 F.3d at 821.
An EA is a “concise public
document” that “[b]riefly provide[s] sufficient evidence and
analysis for determining whether to prepare” a more detailed EIS.
40 C.F.R. § 1508.9(1).
If the agency finds that a more detailed
EIS is not required, then it must issue a FONSI, “which briefly
presents the reasons why the proposed agency action will not have
a significant impact on the human environment.”
Cong., 518 F.3d at 821.
Once the agency identifies and evaluates
environmental concerns, “NEPA places no further constraint on
Silverton Snowmobile Club v. U.S. Forest Serv.,
433 F.3d 772, 780 (10th Cir. 2006).
NFMA’s Implementing Regulations
“NFMA imposes substantive duties on the Forest Service, such
as the duty to ‘provide for diversity of plant and animal
Utah Envtl. Cong. v. Troyer, 1:04-cv-155-PGC, *8
(D. Utah July 5, 2005) (quoting Utah Envtl. Congress v. Zieroth,
190 F. Supp. 2d 1265, 1268 (D. Utah 2002).
regulations set forth specifically how the Forest Service will
satisfy those duties.
In this case, the DNF applied the “2000
One of the 2000 regulations’ provisions requires
the Forest Service to consider “the best available science in
implementing” site-specific projects within a forest unit.
36 C.F.R. § 219.35(a) (2001).
One of UEC’s arguments is that
“the NFMA ‘2000 transition regulation’ is illegal under the
(Doc. 15, at 38.)
The court addresses UEC’s assertion
that the 2000 regulations violate NFMA in its analysis below.
UEC makes four main arguments in challenging the September
13, 2007 decision.3
First, UEC makes two NEPA arguments.
argues that the DNF’s decision is arbitrary and capricious
because (1) it failed to take a hard look at the peregrine falcon
Throughout its brief, UEC makes passing arguments that the
court refuses to address because they are inadequately briefed,
and under the Federal Rules of Appellate Procedure,
insufficiently briefed arguments are not considered. See
Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th
Cir. 1994) (“Reviews of agency action in the district courts must
be processed as appeals. In such circumstances the district
court should govern itself by referring to the Federal Rules of
Appellate Procedure.” (emphasis in original)); Murrell v.
Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (“[P]erfunctory
complaints [that] fail to frame and develop an issue [are not]
sufficient to invoke appellate review.”); United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (noting the “settled
appellate rule that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived”). For example, UEC makes a one-sentence
allegation that the DNF is violating the DNF Plan by exceeding
state water quality standards, and another one-sentence
allegation that the DNF is violating the DNF plan by exceeding
the roads per square mile guideline. (Doc. 15, at 18, 31-32.)
and roads in violation of NEPA, and because (2) NEPA requires the
DNF to prepare an EIS in this instance.
UEC also makes two NFMA
UEC argues (3) that the 2000 transition regulations
are illegal under NFMA and (4) that the DNF violated NFMA by
failing to follow its forest plan as to the wild turkey, aquatic
macroinvertebrates, the northern goshawk, and the three-toed
Peregrine Falcons and Roads
The court first addresses UEC’s argument that the DNF’s
decision violates NEPA and thus is arbitrary and capricious
because it failed to meet its obligation to take a “hard look” at
the potential environmental consequences of the Mt. Dutton
Project in terms of peregrine falcons and roads.
For UEC to
carry its burden to overcome the presumption in favor of the
agency action, it must show the DNF’s action was “arbitrary and
5 U.S.C. § 706(2)(A).
To show the DNF’s decision
was “arbitrary, and capricious, an abuse of discretion, or
otherwise not in accordance with law” UEC must show the DNF did
not take a “hard look” at the impacts of its final action.
e.g., Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976) (“The
only role for a court is to insure that the agency has taken a
‘hard look’ at environmental consequences.”).
The “hard look” test “imposes no ‘substantive limits on
‘Rather, once environmental concerns are
adequately identified and evaluated by the agency, NEPA places no
further constraint on agency actions.’”
Club, 433 F.3d at 780.
Documents prepared as part of NEPA’s
“hard look” requirement “‘must not only reflect the agency’s
thoughtful and probing reflection of the possible impacts
associated with the proposed project, but also provide a
reviewing court with the necessary factual specificity to conduct
its review.’” Id. at 781 (citing Committee to Pres. Boomer Lake
Park v. Department of Transp., 4 F.3d 1543, 1553 (10th Cir.
Where identifying and evaluating the impacts of an
action involves technical or scientific matters within the
agency’s area of expertise, the court “must defer to the agency’s
Center for Native Ecosystems v. Cables, 509 F.3d
1310, 1327 (10th Cir. 2007) (citing Wyoming v. United States, 279
F.3d 1214, 1240 (10th Cir. 2002)).
Defendants argue the DNF took a hard look at the Mt. Dutton
Project’s impacts on the peregrine falcon by identifying two
types of peregrine falcon habitat - (1) nesting habitat and (2)
(AR 6258, 14041) - then evaluating the proposed
action’s impacts based on each type of habitat.
conducting field reviews, the DNF determined that no suitable
nesting habitat exists within the treatment area because the only
rock cliffs suitable for falcon nests were one-half mile outside
of the project area.
(AR 6258; Doc. 54, at 2.)
Based on that
determination, the DNF decided not to analyze the proposed
action’s impacts on peregrine falcon nesting habitat.
Second, the EA provides that “[h]igh quality peregrine
falcon foraging habitat is available in the riparian areas
available along perennial stream corridors and wetlands located
within the project area.”
The DNF then assessed the
long-term effects of the proposed action.
It concluded the
proposed action actually will improve the peregrine falcon’s
foraging habitat by replacing dead Engelmann spruce trees, which
no longer support the falcon’s prey base, with live Engelmann
spruce trees, which will provide cover and food for the prey
(AR 14072, 6288.)
UEC counters by arguing that sheer cliffs, which allegedly
are suitable peregrine falcon nesting habitat, actually lie
within the treatment area.
UEC argues the DNF’s erroneous
determination that no suitable nesting habitat led to the DNF’s
decision not to conduct an impacts analysis for peregrine falcon
UEC supports its argument that suitable nesting
habitat exists within the treatment area with photos showing
cliffs UEC represents are suitable nesting habitat for peregrine
UEC represents that those cliffs are adjacent to Forest
Road #125, a major log haul road that will carry loud trucks
loaded with Mt. Dutton timber.
UEC argues that smoke, noise, and
dust will indirectly adversely affect peregrine falcons by
affecting the cliffs shown in the submitted photos.
this argument, UEC argues the Forest Service’s approval of the
Mt. Dutton Project is arbitrary and capricious because it is
based on factual inaccuracies.
Defendants respond by arguing UEC’s submitted pictures are
not enough to show that suitable nesting habitat exists within
the treatment area.
Defendants argue the DNF determined the
closest suitable nesting habitat lies one-half of a mile outside
the treatment area boundary (AR 6258), and the DNF’s
determination of the project boundary governs all future actions,
see Kleppe, 427 U.S. at 414 (stating that agencies have
discretion to determine the physical boundaries for project
Further, this court is to give great deference to the
DNF’s determination of where suitable nesting habitat exists.
Having carefully considered UEC’s argument, the court
concludes it need not determine whether cliffs that are suitable
peregrine falcon nesting habitat lie within the treatment area
because even were the court to assume that the cliffs lie within
the treatment area, the court concludes UEC has not shown the DNF
did not take a “hard look” at the project’s impact on the
The Forest Service’s ground surveys revealed
that the nearest falcon nest is 24 miles outside the treatment
area (AR 6258), and nothing has been submitted in the record
showing there are peregrine falcons any closer than that 24-mile
Because the nearest identified falcon is 24
miles outside the area at issue, and because peregrine falcons
nest high on the sheer rock cliffs, on which no Engelmann spruce
trees can grow, the Engelmann spruce trees will not be harvested,
burned, or planted on the cliffs on which peregrine falcons nest,
and no identified peregrine falcon will be directly affected by
the proposed project.
Without disputing that the record shows no peregrine falcons
have been found within the project area, UEC nevertheless argues
the project will result in negative indirect impacts to the
alleged nesting habitat (rock cliffs) because some of the
activities will cause smoke, noise, and dust (Tr. 9-10, 38);
however, other than making general, broad assertions, UEC has not
specified how smoke, noise, and dust will affect the sheer rock
cliffs in a way that is significant to peregrine falcons.
oral argument, UEC asserted: “I do think sound affects rock.
think smoke affects rock.
I think dust affects rock.
that in and of itself is just common sense.”
argument does not explain to the court how sound, smoke, and dust
affect the peregrine falcon’s nesting habitat; it simply
assertively insists that it does affect it.
Additionally, the EA addresses what would happen if a
peregrine falcon were to enter the treatment area during the
The EA acknowledges the falcon would be
temporarily affected by the smoke, dust, and noise, but that the
habitat would not be permanently affected.
(AR 6288; Tr. 28.)
UEC has not shown how the indirect impacts of the project on the
rock cliffs will harm the peregrine falcon beyond the temporary
effects the EA contemplates were a peregrine falcon to enter the
area during the project.
Thus, the EA identifies and evaluates legitimate, rational
concerns regarding the peregrine falcon; UEC has not shown the
DNF failed to take a “hard look” at how the Mt. Dutton Project
may affect the peregrine falcon.
As part of its argument, UEC argues that the NEPA
requirement that agencies insure professional and scientific
integrity in their environmental documents was not followed in
this instance and that the DNF purposefully misled the public.
See 40 C.F.R. § 1502.24.
“[G]overnment officials are presumed to
act in good faith, and ‘it requires “well-nigh irrefragable
proof” to induce the court to abandon the presumption of good
T&M Distribs., Inc. v. United States, 185 F.3d 1279,
1285 (Fed. Cir. 1999) (citations omitted).
presented the court with photographs of cliffs purportedly of
suitable peregrine falcon nesting habitat that purportedly were
taken within the treatment area, these photographs are not enough
to prove that government officials acted without integrity.
Without more, UEC does not overcome the strong presumption that
government officials acted in good faith.
Second, UEC argues the DNF violated NEPA in the way it
analyzed the impact of roads in its report.
Defendants argue the
DNF did not violate NEPA, but instead took a hard look at roads
in the Mt. Dutton Project by identifying their environmental
impacts and evaluating them.
Defendants point out that the DNF identified 30.65 miles of
forest roads and 7.15 miles of unauthorized roads within the
project area (AR 14036), and determined that the existing open
roads impacted the environment in several ways.
In addition to
causing temporary soil instability, which has become stable over
time (AR 14067, 6082), the DNF determined that the existing
roads: (1) fragment wildlife habitat (AR 279-80); (2) affect elk
calving and deer fawning during the spring and summer months (AR
14009, 14043); (3) limit the amount of escape cover on which big
game animals rely (AR 14043); and (4) impact the health of
streams and aquatic biota due to sedimentation, and increase the
possibility that damaging chemicals from vehicles will enter the
environment (AR 14077, 281).
The DNF’s proposed action (1)
closes 12.79 miles of existing roads to public motorized use and
(2) decommissions 3.24 miles of existing roads, which terminates
their use as roads for any purpose (AR 14019).
determined it would close roads with earth/rock barriers and seed
with native vegetation (AR 14019), and that reducing motorized
access together with the new vegetation would reduce erosion and
sedimentation and return the road to a natural-looking landscape
(AR 6084, 14084).
The DNF also determined that road closures and
vegetation seeding minimize habitat fragmentation for wildlife,
reduce the likelihood of adversely affecting elk calving and deer
fawning, and allow big game to have the necessary escape and
(AR 14075, 6252, 6263, 6279, 6299.)
determined that the road closures would limit the opportunities
currently available to off-highway vehicles, which are known to
cause impacts to both soil and wildlife (AF 14081, 6252), and
that these road closures would benefit the goshawk, its prey, the
three-toed woodpecker, and the northern flicker because their
habitat would be less accessible to people (AR 6293, 6296, 630001, 6316).
UEC accuses the DNF of presenting its decision in an
inaccurate and falsely favorable light by including roads within
the road decommissioning numbers that are nonexistent or that had
already been decommissioned so long ago that they appear to be
UEC has submitted pictures of some of these
nonexistent roads, showing that they have completely or for the
most part returned to their natural state.
UEC argues “[t]he
analysis of the impacts to soils is premised on falsely presented
beneficial impacts from decommissioning portions of roads that,
in effect, do not exist, and which artificially inflate the
actual road density reduction.
The [DNF]’s reliance on
decommissioning non-existent roads is arbitrary and capricious
and violates both the letter and the spirit of NEPA.”
UEC argues that road decommissioning is defined by 36
C.F.R. § 212.1, as “[a]ctivities that result in the stabilization
and restoration of unneeded roads to a more natural state.”
Because some of the segments of decommissioned roads have already
returned to their natural state, UEC argues that no activity is
needed to accomplish that objective, and thus the roads do not
need to be decommissioned and should not be included as such in
The court has carefully examined UEC’s argument and finds it
The definition of “decommission” used by the DNF
in its report is that found on the Forest Service’s Website,
which states that to decommission, in part, means the
“terminat[ion] of a facility’s function as a road.”
Office Engineering at the USDA Forest Service, Transportation:
Road Decommissioning, available at
http://www.fs.fed.us/eng/transp/decomm.htm (last visited
September 23, 2009).
In other words, the DNF expressly defined
road decommissioning in its report as closing access to roads.
By listing its definition of “decommission” on its website, the
Forest Service has made public what it means by “decommission” in
In addition, even though some of the roads that were
“decommissioned” apparently had already returned to their natural
state, the DNF was still taking some action that would result in
the stabilization of unneeded roads to a natural state by
officially decommissioning them, officially prohibiting use of
As Defendants have explained to the
court, technically, without a formal, administrative decision
closing those roads, the public, the government, and other forest
users would be free to use motor vehicles on those naturally
decommissioned roads, causing harm to soil and vegetation.4
(Doc. 25, at 19-20.)
Furthermore, the DNF compiled information
showing that some of the 3.24 miles of road proposed for
decommissioning already was healing itself naturally.
In its Roads Analysis Report, the DNF presented a lengthy
table in which it listed each segment of road within the project
area and its designated use, including several small road
segments listed as decommissioning “naturally.”
one year before the DNF issued its DN/FONSI, the DNF made the
Roads Analysis Report available to the public.
EA itself cites the Roads Analysis report.
(AR 14011, 14105.)
Additionally, and very significantly, UEC does not even
mention the additional 12.79 miles of road the DNF closed to
public motorized access.
UEC does not dispute that such closure
will have beneficial impacts in terms of reducing soil surface
NEPA analysis may be insufficient if the agency (1) “did not
make a reasonably adequate compilation of relevant information”
and (2) made “materially false or inaccurate” statements.
In fact, Defendants pointed out to the court during oral
arguments that one of UEC’s blown-up photographs of one of the
disputed decommissioned roads shows tire treads, illustrating
that an OHV probably recently had used the overgrown road. (Tr.
Club v. U.S. Army Corps of Eng’rs, 701 F.2d 1011, 1030 (2d Cir.
Here, however, the DNF defined “decommission,” compiled
relevant information showing that some of the road segments were
naturally repairing themselves, and disclosed that information to
The DNF identified forest roads and unauthorized
roads within the project area, determined how existing roads
impacted the environment in several specific ways, and closed
12.79 miles of existing roads in addition to the disputed
decommissioning of roads.
UEC has neither shown the DNF did not
take a “hard look” at roads, nor overcome the strong presumption
that the DNF’s roads analysis was made in good faith.
Environmental Impact Statement
The court next turns to UEC’s other NEPA argument.
argues that the DNF’s decision is arbitrary and capricious
because the DNF should have prepared an EIS rather than preparing
an EA then issuing a DN/FONSI.
As explained above, under NEPA, when an agency is unsure
whether its proposed action will have significant impacts on the
environment, it may prepare an EA.
F.3d at 821.
See Utah Envtl. Congress, 518
An EA must provide sufficient evidence and analysis
for determining whether there will be significant impacts.
the EA demonstrates that the proposed project will not cause any
significant effects on the environment, it may issue a FONSI.
If the agency determines, either from the start or after
an EA has been prepared, that the proposed project will cause
significant effects on the environment, or if substantial
questions are raised whether the proposed action may have a
significant effect on the environment, an EIS must be prepared.
See McKeen, 615 F.3d at 1248 n.3.
“A presumption of validity attaches to the agency action and
the burden of proof rests with the appellants who challenge such
Citizens’ Comm. to Save Our Canyons v. Krueger, 513
F.3d 1169, 1176 (10th Cir. 2008).
Where, as here, UEC argues that
the DNF should have prepared an EIS, UEC can overcome the
presumption in favor of the DNF only if UEC shows “the agency
acted arbitrarily and capriciously in concluding that the
proposed action will not have a significant effect on the human
Greater Yellowstone Coal., 359 F.3d at 1274
(quotations and citations omitted).
Specifically, UEC must
“demonstrate substantively” that the agency’s conclusion
“represents a ‘clear error of judgment’ . . . .”
“clear error,” UEC must show that the decision is “simply not
plausible or permissible in light of the entire record,” United
States v. McClatchey, 316 F.3d 1122, 1128 (10th Cir. 2003),
remembering that “[a]n agency’s decision to issue a FONSI and not
prepare an EIS is a factual determination which implicates agency
expertise,” Greater Yellowstone Coal., 359 F.3d at 1274
(quotation marks and citations omitted), and this court “must
defer to the agency’s expertise,” Center for Native Ecosystems,
509 F.3d at 1327.
Agencies must prepare an EIS for any “major Federal actio[n]
significantly affecting the quality of the human environment.”
42 U.S.C. § 4332(C).
“In determining whether an action will
significantly affect the environment, agencies must consider both
the context in which the action will take place and the intensity
of its impact.”
Greater Yellowstone Coal., 359 F.3d at 1274.
determine context and intensity, the agency considers ten
See 40 C.F.R. § 1508.27.
In this action, although UEC
mentions several of those factors (Doc. 15, at 24-25), it only
develops an argument regarding one of those factors:
The term “cumulative impact” means “the impact on the
environment which results from the incremental impact of the
action when added to other past, present, and reasonably
foreseeable future actions.”
40 C.F.R. § 1508.7.
impacts can result from individually minor but collectively
significant actions taking place over a period of time.”
The court does not address any of the other factors
mentioned by UEC because they are insufficiently briefed. See
Murrell, 43 F.3d at 1389 n.2. For example, the court declines to
address any intended argument of bias and uncertainty; UEC
alleges but fails to adequately brief its argument that the DNF’s
“decision [was] biased by stated beneficial impacts of the
project[,] . . . there is indeed an ecologically critical area
that will be impacted by the project [,] . . . [and] there are
effects on the environment that are highly uncertain . . . .”
(Doc. 17, at 24.)
NEPA requires the agency to take a hard look at the cumulative
impacts on the affected geographic area.
See Grand Canyon Trust
v. Federal Aviation Admin., 290 F.3d 339, 342 (D.C. Cir. 2002).
UEC argues that if the DNF had done a proper cumulative
impacts analysis, it would have found that the Mt. Dutton Project
had a significant impact on the environment necessitating an EIS.
UEC contends that the DNF’s analysis was insufficient and should
have required the preparation of an EIS because the DNF’s
cumulative impact areas for soils, watersheds, and aquatic
species were inadequate.
UEC also argues the DNF failed to
consider the cumulative impacts on soils, watersheds, and aquatic
Cumulative Impact Areas
First, UEC argues the DNF improperly determined the
cumulative impact areas for soil, watersheds, and aquatic
The court must give great deference to the agency’s
designation of the analysis area for its review of cumulative
See Neighbors of Cuddy Mtn. v. Alexander, 303 F.3d
1059, 1071 (9th Cir. 2002) (“[U]nder NEPA we defer to an agency’s
determination of the scope of its cumulative effects review.”
(citing Kleppe, 427 U.S. at 413-14)).
Regarding soils, the DNF designated the project area as the
cumulative impacts area for soils.
The DNF reasoned
that since harvesting, prescribed burns, and replanting
activities will occur only within the project area, soil outside
of the project area will not be disturbed by the proposed
action’s activities, and need not be analyzed.
Regarding the watershed area, the DNF designated the cumulative
impacts area to include Hoodle Creek, Forest Creek, and Deep
The DNF chose this area because it
determined that disturbed soil and ash from the project area may
enter waters within the project area, will flow downstream out of
the project area, but will not significantly impact downstream
waters and wildlife.
(AR 3525, 14037, 14064-5.)
As a result,
the DNF included those three watersheds that are downstream from
the project area to evaluate cumulative impacts.
aquatic species, the DNF determined that the cumulative impact
effects area included the entire watersheds of Deep Creek, Forest
Creek, and the East Fork Sevier River Outlet.
According to the DNF’s Plan, the DNF must evaluate impacts on
fish populations; but if fish data is not available, it must
evaluate impacts on aquatic macroinvertebrate species.
Although there are no fish within the project area, the
DNF analyzed the impacts on the nearest fish population, which
lives eight miles downstream from the project area (AR 3525-26),
as well as collecting macroinvertebrate data both inside and
outside of the project area (AR 3522).
The DNF made its
determination of the aquatic species cumulative impacts area
based on that collected information.
UEC argues the project area is too small of a cumulative
impacts area for soils, and that by choosing such a small
boundary, the conclusion of “no measurable cumulative effects” to
the soils does not account for the project’s direct, indirect,
and cumulative impacts that will occur in areas outside the
On the other hand, UEC argues that the DNF’s
cumulative impact area is too large for examining the impact on
the watersheds and improperly dilutes the project’s negative
impacts because it includes Hoodle Creek, which is part of the
Sevier River Outlet.
Thus, UEC argues the impacts analysis area
is too small for measuring the impacts to soils, but too large to
properly measure the impacts to watersheds.
aquatic species cumulative impacts area, UEC argues that the area
should not be confined solely to the project area.
The DNF’s designations are based on information gathered and
analyses done of that information.
As to UEC’s watershed
cumulative impacts argument, the DNF’s determination that the
Hoodle Creek portion of the Sevier River Outlet is hydrologically
connected to the project area is a matter of scientific expertise
that is entitled to judicial deference.
See Center for Native
Ecosystems, 509 F.3d at 1327 (stating that courts “must defer to
the agency’s expertise”).
Further, UEC’s argument that the sixth
field watershed is in reality three sixth field watersheds - that
a proper watershed designation was not made - is not an issue for
which any expert showing has been made in the record.
The record reveals that the DNF’s determinations of the
cumulative effects areas are reasonable, are based on data and
expertise, and are entitled to deference.
UEC has not overcome
its burden to show the DNF did not comply with NEPA’s
requirements; therefore, the court must defer to the Forest
Service’s reasonable determinations regarding “technical or
scientific matters within the agency’s area of expertise.”
Envtl. Congress, 443 F.3d at 739.
Second, UEC argues the DNF failed to properly analyze the
cumulative impacts on soils caused by the proposed project.
UEC claims that the detrimental soil disturbance within
Hoodle Creek, Deep Creek, and Forest Creek are already at 8-15
percent and, therefore, any further detrimental soil disturbance
from the proposed action will exceed the threshold value of 15
(Doc. 15, at 20-21, 29.)
In support of this argument,
UEC relies on the following sentence in the Administrative
“The range of threshold values varies with each
watershed and region from as low as 8 percent to as high as 15
(AR 4065, 14066.)
From its argument, it appears that
UEC believes that the term “threshold value” means the amount of
pre-existing detrimental soil disturbance in a given area.
UEC’s argument is based on an erroneous understanding of the
definition of “threshold value,” and consequently lacks merit.
As Defendants explain, “threshold value” represents the level of
soil disturbance in an area that, if exceeded, will create a
“detrimentally disturbed” soil condition (AR 6128); “threshold
value” does not represent an existing level of soil disturbance.
The DNF determined that if the threshold value of detrimentally
disturbed soil exceeds 15 percent in a watershed, the area is
detrimentally disturbed, and the entire area fails the DNF’s
(AR 6128, 14065-66.)
For that reason, the DNF
mathematically calculated the combined amount of detrimental soil
disturbance from past, present, and the proposed actions and
found that the threshold values for soil disturbance in the
watersheds within the project area is nowhere near 15 percent.
(AR 4065, 4099-116.)
Further, the record supports that the DNF took a “hard look”
at the cumulative impacts on soils.
For example, in accordance
with NEPA’s regulations, the DNF determined that past timber
sales, grazing, roads, trails, camping, OHV use, and prescribed
burns all have disturbed soils in the past (AR 14067); however,
the DNF found that soil disturbances from these past activities
have stabilized and now are minimal (AR 14067).
above, the DNF mathematically calculated the extent of soil
disturbance from each of the past activities.
The DNF also analyzed the soil impacts from the proposed
First, the DNF identified the soil types within the
(AR 4060-61, 6080-81, 14037.)
Second, the DNF
conducted a review of the Forest Service Handbook, scientific
literature, and field studies to determine the threshold value
for soil quality for the activity areas within the project’s
(AR 4183-206, 4207-11, 6129-30, 6085-86, 6243,
Third, the DNF concluded that a threshold value of 15
percent was acceptable in each activity area within the project
boundaries (AR 14065-66); in other words, 85 percent of the soils
in each activity area cannot be detrimentally disturbed (AR
Next, after establishing that 85 percent of the soils in
each activity area should not be detrimentally disturbed, the DNF
identified and evaluated the impacts of timber harvesting
activities and the management practices necessary to maintain the
85 percent standard.
Through field surveys and scientific
literature reviews, the DNF determined that timber-harvesting
activities can degrade soil by increasing soil compaction and
displacement, as well as decrease vegetation productivity and
To mitigate these impacts,
the DNF evaluated the best management practices for timber
harvesting and found that regulating the use of ground-based
yarding systems in the DNF is likely to cause only a 7 percent
detrimental change to soils in areas where yarding is allowed.
Also, the DNF required that helicopters harvest 278
of the 836 acres authorized for logging, which reduces the amount
of soil disturbance.
Further, as to prescribed
burns, the DNF determined that: (1) prescribed burns would
detrimentally disturb only 5 percent of the area in which
prescribed burns are allowed (AR 14065) and (2) constructing
handlines by digging a shallow trench less than 24-inches wide
would not detrimentally disturb the soil because the handlines
would be rehabilitated following the prescribed burn.
The DNF determined that closing and decommissioning
roads would also contribute to reducing the impacts to soils.
The DNF then mathematically calculated the area
of detrimental disturbance from the timber harvest and prescribed
Since the reasonably foreseeable future actions did not
differ from the present actions currently occurring on the DNF
(AR 14066-68), the DNF combined its mathematical calculations of
detrimental soil disturbance from past activities, present
activities, and the proposed action and determined that the total
soil disturbance was less than 15 percent in each activity area.
(AR 14067, 4065, 4099-116.)
In summary, UEC’s argument challenging the DNF’s “hard look”
at the cumulative impacts on soils was based on a
misunderstanding of the term “threshold value” and lacks merit.
Based on the record, the court concludes the DNF took a “hard
look” at the cumulative impacts on soils and appropriately
determined they were not significant.
Third, the court examines UEC’s argument that the DNF did
not appropriately examine the cumulative impacts of the proposed
project on watersheds.
UEC particularly argues the DNF did not
consider the effects of the Sanford Fire in examining the
cumulative impacts on watersheds.
Having reviewed UEC’s argument
and the record, the court concludes UEC’s argument fails because
the DNF took a “hard look” at past, present, and reasonably
foreseeable future actions on watersheds and appropriately
determined that those impacts are not significant.
First, the DNF looked at past actions that have impacted
watersheds, including the Sanford Fire.
(AR 4063, 14063-65.)
fact, the DNF determined that the Sanford Fire: (1) initially
caused instability in stream beds; (2) placed sediment and ash,
which contained phosphorous, into the water; and (3) reduced
vegetative shade cover over streams, which increased water
temperature in derogation of water quality standards.
The DNF found that since the Sanford Fire in 2002, stream
beds have regained stability.6
Second, the DNF identified and evaluated the impacts from
the proposed action.
As for the timber-harvesting portion of the
proposed action, the DNF recognized that timber-harvesting
UEC frequently asserts in its pleadings that the DNF failed
to consider the effects of the Sanford Fire in analyzing the Mt.
Dutton Project. As illustrated by the court’s analysis, that
assertion is not supported by the record.
activities may result in erosion, which causes sediment to enter
the streams (AR 14076); however, the DNF determined that the
soils are less than 15 percent detrimentally-disturbed in all
three watersheds in the project area; thus, erosion will be
sufficiently controlled to avoid any significant impacts to water
quality (AR 14065-66).
The DNF also has prohibited land-based
mechanical timber-harvesting within 150 feet of streams (AR
14022), and only helicopter and manual harvesting are allowed
therein (id.), avoiding soil compaction near streams and
displacement of sediment into the waters.
Further, the DNF
recognized that removing dead Engelmann spruce trees by
non-mechanical means next to the streams will not have an adverse
effect on water quality because the dead spruce trees do not
currently shade the water.7
(AR 4067, 14064.)
As for the
prescribed-burn portion of the proposed action, the DNF
recognized that ash, which contains phosphorous, may enter the
streams; however, to mitigate against that impact, the DNF has
established a 100-foot vegetative buffer strip between the
Among other assertions, citing to AR 25, 27, 3523, 3525,
3527-28, 4065, 14063, and 14076-77, UEC argues that the Mt.
Dutton Project will cause “a loss of stream shading” and “an
increase in water temperature.” (Doc. 29, at 14.) The court has
carefully reviewed these parts of the AR, but has not found
support for these assertions.
Throughout its pleadings, UEC - as here - makes general
assertions that are not supported by the record. Further, as
here, UEC does not explain how the alleged harm will occur, but
simply states that it will happen. In light of the applicable
standard of review, such argument is not enough to meet UEC’s
burden before the court.
prescribed burn and the stream to prevent ash and phosphorous
from entering the water (AR 14022, 14063, 14076).8
Third, after analyzing the impacts of the Sanford Fire,
other past actions, and the proposed action, the DNF evaluated
the impacts of the future DNF “Motorized Travel Plan.”
evaluating the future impacts from a future decision, certainty
is not required because “[c]ertainty as to the cumulative effects
. . . requires prophecy beyond the capabilities of both
scientists and courts.
Neither are endowed with divine
It is enough that the [EA] mentions and discusses
(10th Cir. 1977).
Manygoats v. Kleppe, 558 F.2d 556, 560-61
The EA mentions that the DNF’s Travel Plan
will designate some open travel routes in the DNF and will
eliminate all other overland travel across the DNF.
The EA states that eliminating overland routes will enhance
vegetation near streams and will mitigate stream-channel
Beyond this statement, the DNF
could not discuss any further effects from the Travel Plan
In its reply brief, citing to Judge Kimball’s Zieroth case,
see Utah Envtl. Cong. v. Zieroth, 190 F. Supp. 2d 1265 (D. Utah
2002), UEC argues that the mere fact that mitigation measures are
being made indicates that impermissible harm is going to occur in
this case. The court has examined Zieroth and concludes the
mitigation measures that admit harm discussed are different than
those addressed in this case. In this case, the DNF is not
instituting mitigation measures to counteract harm; instead, it
is taking measures to construct the project in a way so it will
not interfere with the streams in the first place.
because the DNF has not yet prepared an EA or an EIS analyzing
alternatives for the proposed Travel Plan.
After analyzing the past, present, proposed, and reasonably
foreseeable future actions, the DNF determined that their
combined impact was not significant on watersheds because
detrimentally-disturbed soil will fall below 15 percent in each
watershed, prescribed burns will be kept 100 feet away from the
streams, and mechanized timber harvesting will be kept 150 feet
away from streams.
(AR 14022, 14065-68.)
Therefore, the DNF
took a hard look at the cumulative impacts on watersheds and
appropriately determined that they were not significant.
Finally, UEC argues that the DNF failed to take a “hard
look” at the cumulative impacts of the proposed project on
UEC argues that the Sanford Fire had lethal
effects on much of the aquatic population and that the record
lacks analysis of how Mt. Dutton Project activities, coupled with
the Sanford Fire’s impacts, will affect the continued substandard
and downward trend on aquatic species, and macroinvertebrates in
Having reviewed the parties’ pleadings and the record, the
court is persuaded the DNF adequately considered the cumulative
impacts of the Mt. Dutton Project on aquatic species.
UEC conceded at oral argument that within the project area,
there are no fish in any of the streams or watersheds. (Tr. 13.)
identified and analyzed four past actions that affect aquatic
(1) past timber harvests; (2) livestock grazing; (3)
the Sanford Fire; and (4) roads and trails.
found that sediment deposition was the main effect of past timber
The DNF also stated that further impacts from past
timber-harvest activities were difficult to discern because the
impacts of livestock grazing, roads, and post-fire effects were
more immediately pervasive.
(AR 3527-28, 14077.)
grazing, roads, and past fires are causing sediment deposition in
the streams, and past fires also have caused a loss in shade
cover for the streams, which has increased the water temperature.
The DNF also identified the present actions affecting
aquatic biota as:
livestock grazing, roads, and the proposed
action’s activities (AR 14077); however, the DNF recognized these
present actions will not affect fish for two reasons: (1) the
nearest fish population is 8 miles downstream from the project
area (AR 3525) and (2) the DNF determined that there is a lack of
perennial channel connections between the project area and the
downstream fish populations (id.).
Further, the DNF recognized
that the proposed timber-harvesting activities may cause
increased erosion into streams, which can adversely affect
aquatic biota (id.); however, the DNF has prohibited land-based,
mechanized timber harvesting activities within 150 feet of
streams (AR 14022), minimizing erosion into streams from present
In addition, the DNF identified loss of stream shading as a
potential impact from the non-mechanized timber harvesting along
stream banks (AR 3525); nevertheless, the DNF determined that
because the dead Engelmann spruce trees that will be harvested do
not currently provide any appreciable shade to the streams,
harvesting the dead trees will not cause any additional impacts
to stream temperature or aquatic species (AR 4067, 14064).
Additionally, although the DNF identified that prescribed burn
areas can add ash and phosphorous to the streams, which impact
aquatic biota (AR 3525), the DNF prohibited prescribed burn
activities within 100 feet of streams (AR 14022, 14063, 14076),
greatly minimizing the impacts of any ash and phosphorous.
Furthermore, the DNF also analyzed the impacts on the aquatic
habitat of closing 12.79 miles of roads to motorized public
access and decommissioning 3.24 miles of roads from all use.
DNF determined that “[c]losure of road segments within the
project area would reduce sediment production, and would promote
quality aquatic habitat conditions.”
(AR 3527, 14077.)
Besides analyzing the above-mentioned past and present
impacts, the DNF identified and analyzed the reasonably
foreseeable impacts from the DNF’s future Travel Plan.
The Travel Plan will open certain roads within the
DNF and close all others to overland use.
though the DNF has neither determined alternatives nor conducted
NEPA analysis on the Travel Plan, the DNF has concluded that
closing routes through the DNF will benefit the habitat of
aquatic species by reducing sediment deposition and habitat
The DNF took a “hard look” at the
past, present, and reasonably foreseeable future actions on
aquatic species and appropriately determined those impacts were
Finally, UEC asserts that the “Forest’s own literature on
the effects of even small, low-intensity burns shows that the
impact can ‘temporarily alter . . . the rearing areas for aquatic
Cumulatively, this impact could be severe.’”
(Doc. 15, at 45 (citing AR 3726).)
The court is unpersuaded by
Page 3726, to which UEC cites, merely summarizes
a literature review on the possible effects of fire on aquatic
macroinvertebrates in the southwestern United States.
literature review did not conduct a site-specific analysis on
macroinvertebrates within the project area and did not consider
100-foot stream buffers like those imposed in the proposed
action, making UEC’s citation to page 3726 unhelpful in
determining the cumulative impacts in the project area.
not shown the DNF’s decision was “‘simply not plausible or
permissible in light of the entire record,’” McClatchey, 316 F.3d
at 1128 (citation omitted); therefore, UEC has not shown the DNF
clearly erred by deciding not to prepare an EIS or that the
decision was arbitrarily or capriciously made.
NFMA’s “2000 Transition Regulation”
The court next turns to UEC’s two NFMA arguments.
first examines UEC’s argument that “the NFMA ‘2000 transition
regulation’ is illegal under the NFMA.” (Doc. 15, at 38.)
Before addressing the substance of UEC’s argument, the court
must first examine UEC and Defendants’ dispute regarding what
argument UEC presented in its opening brief.
In its opening
brief, UEC’s entire one-paragraph argument regarding the “2000
transition regulation” was the following:
Even if this Court finds that the DNF applied
the 2000 transitional regulation to the Mt.
Dutton project decision, [UEC] argues that
the 2000 transition provision is illegal and
cannot be applied. The NFMA requires that
the Secretary of Agriculture “shall”
promulgate regulations with substantive
standards and guidelines including specific
“required provisions.” 16 U.S.C. § 1604(c).
This list includes setting regulatory
standards and guidelines that ensure
protection of wildlife and fish, water
quality, soil quality, timber, range,
wilderness, diversity of species, and
monitoring and assessment. Id. at §
1604(c)-(g). The 2000 transition provision
provides none of these. Its sole requirement
is that “the responsible official [must]
consider the best available science in
implementing” a forest plan. 36 C.F.R §
219.35(a), (d) (2001); 65 Fed. Reg. 67,514,
67,579 (Nov. 9 2002). The transition
provision entirely failed to incorporate
anything that the NFMA required of its
implementing regulations, and should be found
illegal as a violation of NFMA.
(Doc. 15, at 38-39 (footnote omitted).)
UEC also attached the
following footnote to its argument:
Had the transition regulation been just
that – a stop-gap measure – it might have
been understandable to have a stripped down
transition regulation for a very short period
of time. However, the so-called transition
regulation was in effect from 2001 when the
Forest Service removed all substantive
provisions of the 2000 regulations, leaving
only the transition regulation until 2008
when new NFMA regulations were approved.
During those seven years all that remained to
guide Forest Service projects across the
country was the anemic transition regulation.
(Doc. 17, at 39 n.11.)
Defendants interpreted UEC’s argument as challenging the
part of the regulation that requires that “the responsible
official [must] consider the best available science in
implementing” a forest plan.
(Doc. 25, at 31-32.)
argued that the statute governing rules implementing the Forest
Plan is not section 1604, but rather section 1613, which gives
the Secretary discretion to set rules in contexts other than the
formation or amendment of a forest plan.
In its reply brief, UEC
responded by arguing “Defendants misconstrue UEC’s claim as
challenging only a portion of the transition provision.
challenges the entire provision at 36 C.F.R. § 219.35 (2001).”
(Doc. 29, at 19 n.8.)
Defendants then asserted at oral argument
that the court should not consider UEC’s new “facial challenge”
to 36 C.F.R. § 219.35 (2001), because that argument was not
raised in their initial brief, so Defendants had not been able to
discuss it in their response brief.
“A facial challenge, as distinguished from an as-applied
challenge, seeks to invalidate a statute or regulation itself.”
United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000).
UEC’s reply brief argues that it seeks to invalidate the entire
transition provision at 36 C.F.R. § 219.35.
In challenging the
entire transition regulation - including those parts of the
regulation that were inapplicable to the decision at issue in
this case - UEC’s argument constitutes a facial challenge.
explained above, this court acts as an appellate court in this
case, see Olenhouse, 42 F.3d at 1580, and the Tenth Circuit has
explained that arguments raised for the first time in a reply
brief are waived, see Stump v. Gates, 211 F.3d 527, 533 (10th Cir.
It is possible to construe UEC’s brief as vaguely raising a
facial challenge to the 2000 transition provision.
UEC argued in
that brief that “the 2000 transition provision is illegal and
cannot be applied” and that “[t]he transition provision provides
none of” the specific requirements mandated by 16 U.S.C. §
1604(c); however, this argument was not clearly raised, could not
be identified by Defendants with any certainty, and certainly was
not adequately briefed.
UEC explained neither that it was making
a facial challenge to the regulation, nor that it was challenging
the entire regulation.
Such vaguely raised and inadequately
briefed arguments need not be addressed by the court in its
decision, nor by the opposing party in its response brief.
Merrifield v. Board of Cnty. Comm’rs, – F.3d –, 2011 WL 3000687,
*5 (10th Cir. 2011) (declining to address argument that was not
raised in opening brief but was raised later at oral argument);
U.S. v. Waseta, 647 F.3d 980, 989 n.6 (10th Cir. 2011) (refusing
to address argument developed for first time in reply brief);
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e
routinely have declined to consider arguments that are not
raised, or are inadequately presented, in an appellant’s opening
The federal rules require that arguments be clearly
identifiable and well-briefed in order to be addressed on appeal.
UEC’s vague and extremely brief alleged facial challenge did not
meet either of those requirements.
As a result, the court deems
UEC’s facial challenge as waived.10
See U.S. v. Cooper, – F.3d –,
2011 WL 3559929, at *19 (10th Cir. 2011) (“It is well-settled that
‘[a]rguments inadequately briefed in the opening brief are
waived.’” (citations omitted)).
UEC’s other challenge to 36 C.F.R. § 219.35 (2001) was an
as-applied challenge, and asserted that the portion of 36 C.F.R.
§ 219.35(a) (2001), that requires the Forest Service to “consider
the best available science in implementing” a forest plan
violates 16 U.S.C. § 1604(g).
The court has reviewed this
Indeed, confusion as to what argument UEC intended to make
is probative of inadequate briefing.
argument and agrees with Defendants’ counter-argument that
section 1613 - not section 1604 - governs rules “implementing” a
forest plan, and that section 1613, unlike section 1604, does not
require that certain topics be addressed.
When Congress expressly delegates authority to an agency to
promulgate regulations, “any ensuing regulation is binding in the
courts unless procedurally defective, arbitrary or capricious in
substance, or manifestly contrary to the statute.”
v. Mead Corp., 533 U.S. 218, 227 (2001) (citing Chevron U.S.A.,
Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984)).
Section 1604(g) authorizes the Secretary to promulgate
regulations “for development and revision of [forest plans]” and
requires those planning regulations to address certain topics,
see 16 U.S.C. § 1604(g)(1)-(3); however, “implementing” a forest
plan is not the same as the “development and revision” of a
Under NFMA, Congress established a two-step process
for managing the national forests.
First, “NFMA requires the
Forest Service to develop and maintain a Forest Plan for each
unit of the National Forest System.”
Native Ecosystems Council
v. U.S. Forest Serv., 418 F.3d 953, 957 n.1 (9th Cir. 2005).
Second, after the forest plan is established, “the Forest Service
implements each Forest Plan by approving or disapproving
Thus, “development and revision” of
a forest plan is a different management activity than
implementing a forest plan.
16 U.S.C. § 1604(g).
Given that “implementing” a forest plan is a different
management activity than developing or amending a forest plan,
section 1604(g) does not apply to 36 C.F.R. § 235.19(a), which
regulates the implementation of an existing forest plan.
terms, section 1604(g) applies only to regulations that govern
“development and revision” of forest plans.
The 36 C.F.R. § 235.19(a) provision that UEC
challenges here requires the Forest Service to consider the best
available science in “implementing” a forest plan.
section 1604(g) does not apply to 36 C.F.R. § 235.19(a) (2001).
Thus, where, as here, the Secretary has promulgated
regulations that implement an existing forest plan, those
regulations are authorized under 16 U.S.C. § 1613.
allows the Secretary to promulgate “such regulations as he
determines necessary and desirable to carry out the provisions of
[NFMA].” 16 U.S.C. § 1613.
Section 1613 does not require
regulations promulgated thereunder to address certain topics.
a result, the court concludes that the 36 C.F.R. § 235.19(a)
(2001) provision requiring the Forest Service to “consider the
best available science in implementing” a forest plan need not
comply with 16 U.S.C. § 1604(g); therefore, UEC’s argument lacks
UEC also argues that because the DN/FONSI has one citation
to the enjoined 2005 regulations, the entire decision is
arbitrary and capricious.
The court rejects this argument.
record shows that the DNF applied the “best available science”
standard of 36 C.F.R. § 235.19(a) (2001).
The EA mentions the
“best available science” standard at least sixteen times (AR
14056, 14058, 14060, 14062, 14065, 14069, 14074, 14075, 14078,
14089, 14090), and the DN/FONSI itself states that the 2005
regulations were enjoined and that 36 C.F.R. § 235.19(a) (2001)
applied (AR 13987).
The court concludes that one citation to the
2005 regulations is not enough to prove the EA relied upon those
regulations rather than 36 C.F.R. § 219.35(a) (2001),
particularly in light of the EA’s history, including the
withdrawal of the February 23, 2007 EA and the later June 15,
2007 reissuance, which was done to comply with the Forest
Service’s directive after the 2005 regulations were enjoined (AR
Cf. Utah Envtl. Cong., 518 F.3d at 830
(explaining that although the Forest Service did not specifically
cite the 2000 regulation in its DN, the administrative record
established that the agency considered the best available
science, and the DN explicitly referenced the Goshawk Amendment,
which bound the Forest Service to consider the best available
science by its incorporation of the Conservation Strategy).
Finally, UEC also claims the 1982 regulations should apply
instead of 36 C.F.R. 219.35(a) (2001); however, the Tenth Circuit
has held that 36 C.F.R. § 219.35(a) “rendered the 1982 rule
inoperative for project-specific decisions made after November 9,
Utah Envtl. Cong., 443 F.3d at 746.
contention that the 1982 regulations apply to this case lacks
Complaince with the DNF’s Plan and NFMA
Finally, the court turns to UEC’s fourth main argument that
the DNF failed to accurately monitor and/or provide for
sustainable diversity and population viability as required by
NFMA and the DNF’s Plan.
Specifically, UEC argues that the DNF
did not comply with NFMA and the DNF’s Plan’s guidance for the
wild turkey, aquatic macroinvertebrates, the northern goshawk,
and the three-toed woodpecker.
As explained above, the court reviews compliance with NFMA
under the APA, see Utah Envtl. Cong., 443 F.3d at 739, and under
the APA, “[a] presumption of validity attaches to the agency
action and the burden of proof rests with the appellants who
challenge such action,” Citizens Comm. to Save Our Canyons, 513
F.3d at 1176 (citations and quotation omitted).
In order to meet
its burden and overcome the presumption in favor of the agency
under the APA, UEC must show that the DNF’s decision was
“arbitrary and capricious, an abuse of discretion, or otherwise
not in accordance with law.”
Utah Envtl. Cong., 443 F.3d at 739.
To prove that the DNF’s decision was “arbitrary and capricious,”
UEC must show that the decision fails to comply with the DNF
See 16 U.S.C. § 1604(i).
The court must give the DNF’s
interpretation of its plan “controlling weight” unless the
interpretation is “plainly erroneous or inconsistent with the
Lamb v. Thompson, 265 F.3d 1038, 1047 (10th Cir.
2001) (quotations and citations omitted, alteration in original).
To ensure the viability of species, forests have adopted
Management Indicator Species (“MIS”).
MIS are species of animals
or plants that are chosen by the forest to act as a sort of
See Utah Envtl. Cong. v. Bosworth, 372 F.3d 1219,
1227 (10th Cir. 2004).
MIS represent species dependent on
specific habitats, and the Forest Service monitors the MIS as a
way to gauge the health of the larger community of species
dependent on each of those habitat types.
Under the DNF Plan,
minimally viable populations of all MIS are to be exceeded
through planning in all projects.
(Doc. 15, at 41 (citing Dixie
Forest Plan FEIS S-10).)
The Forest Service also has designated certain species as
Sensitive species are Forest Service-
designated species whose population viability is a concern either
because of a significant current or predicted downward trend in
population or habitat capability.
Service Manual (“FSM”) 2670.5).)
(Doc. 15, at 46 (citing Forest
The FSM directs forests to
ensure that sensitive species do not become threatened or
endangered because of Forest Service actions and to determine the
distribution, status, and trend of sensitive species and their
habitats and to maintain viable populations in their habitats.
(Id. (citing FSM 2670.45(4), 2670.22).)
species, the DNF Plan simply says, “Habitat will be improved for
UEC argues that although the Mt. Dutton Project will
directly affect wildlife habitats and the species dependent upon
them, the DNF failed to accurately monitor and/or provide for
sustainable diversity and population viability in terms of four
MIS/and or sensitive species: (1) the wild turkey, (2) aquatic
macroinvertebrates, (3) the northern goshawk, and (4) the threetoed woodpecker.
The Wild Turkey
First, the wild turkey is a DNF MIS representing the habitat
of mountain brush, mature aspen, and mature-old growth conifer.
The DNF Plan requires (1) annual monitoring of wild turkeys (AR
1226) and (2) maintaining wild turkey habitat (AR 1013).
examined the pleadings and the record, the court is persuaded
that the DNF adequately monitored and maintained the wild turkey
First, the DNF adequately monitored the wild turkey
Even if the Forest Service does not annually collect
data on a species as required by a forest plan, courts will
uphold the Forest Service’s decision if the Forest Service
collected population data that is “ample to support” its
decision, Utah Envtl. Cong., 443 F.3d at 751-52; see also Utah
Envtl. Cong., 479 F.3d at 1285 (stating that the Forest Service
must make a “good faith effort” to collect population data), and
the court concludes that the DNF collected ample data on wild
turkeys to support its decision.
For example, the record
contains monitoring data for 1992, 1995, 1997-2001, 2005, and
(AR 7186, 7208, 7209-17, 7218-36, 7166-85, 7187-206, 8078,
8083, 8092, 8095, 8098, 8114, 8136, 11519-36, 11547, 11553,
11614, 11693, 11696, 11700-06, 11708-11.)
Additionally, the DNF
relied on a Life History Report for the wild turkey.
Such reports satisfy the DNF’s monitoring requirements.
See Utah Envtl. Cong., 443 F.3d at 751 (stating that life history
report satifies Forest Service’s monitoring obligations under the
Further, the DNF monitored the wild turkey in and
near the Mt. Dutton Project area.
(AR 7186, 7208, 7207 (video),
The DNF had sufficient data on wild turkey to
render a reasoned decision.
Second, the DNF has maintained wild turkey habitat.
the record shows that wild turkey populations consistently have
been on the rise.
Citing to AR 7167, 7187, Defendants represent
that the number of turkey hunting permits issued by the Utah
Division of Wildlife Resources has been increased every year;
further, the record provides that “turkeys have been hard to
count because of [an] increased population trend” (AR 8294).
Since 1997[,] hunter success rates have been
on the increase from a total of 80 birds to
120 birds in a 3-year period. In combination
with these numbers, the total numbers of
hunter days in the field to harvest a bird
have dropped drastically. This suggests that
birds are more prevalent to harvest in a
shorter time period. Since 1991[,] the total
numbers of Rio Grand turkeys harvested have
also increased steadily. Based on these
data, turkey populations are increasing, or
are in an upward trend, and therefore
populations are viable in the Southern
Consistent with these observations, the wild turkey
population within the Mount Dutton area itself is estimated to be
300, and the Mount Dutton unit comprises only two of the six
hunting units on the DNF.
observations show that the DNF has maintained wild turkey habitat
consistent with the DNF Plan.
Moreover, the DNF’s extensive monitoring data shows that its
approved action will not harm the wild turkey or its habitat in
Instead, the DNF determined that the approved project
actually would improve the wild turkeys’ foraging habitat.
Also, in attempting to show that the wild turkey population
is below 150 turkeys, UEC misstates the Administrative Record:
UEC states that “the wild turkey population went from 80 in 1997
to 120 three years later” (Doc. 15, at 43); however, as shown
above, the numbers 80 and 120 represent the number of wild
turkeys that were successfully hunted, not the total population
of wild turkeys (AR 11986).
Second, aquatic macroinvertebrates are a Dixie National
Forest MIS that reflect the condition of the aquatic community.
UEC argues that “[i]n order to ensure viability of
macroinvertebrates, the Forest Plan requires the DNF to maintain
a Biotic Condition Index (‘BCI’) of at least 70" (Doc. 15, at 44
(citing AR 1013)), that “[s]ome streams within the effects area
are currently below the Forest Plan standard of 70" (id. at 45),
and that “Mt. Dutton Project activities will most likely further
reduce BCI counts below Forest Plan minimum standards” (id.).
other words, UEC argues that “[t]his violation of a Forest Plan
requirement for macroinvertebrates coupled with actions that will
most likely drop BCI levels even lower is a violation of the
Forest Plan and NFMA’s guidance to ensure the viability of
The court finds UEC’s argument unpersuasive.
The DNF Plan
reveals that the purpose of using BCI is not to maintain
populations of macroinvertebrates themselves, but to maintain
appropriate habitat for fish populations.
The DNF Plan provides:
Aquatic Habitat Indicators. Because of the
variety of aquatic habitats on the Forest, a
combination of Indicator Species will be
used. The native Bonneville cutthroat trout
will be the MIS in those streams which
contain native or transplanted populations.
Rainbow, brown, brook, or cutthroat trout
will be used in most streams and lakes on the
Forest. The most common species in a
particular water body will be the MIS in that
area. If fish population data is not
available for a particular water body, the
macroinvertebrate biotic condition index
(BCI)* will be used to assess fish habitat
Because of that stated intention, Judge Cassell
explained in Utah Envtl. Cong. v. Troyer, 1:04-cv-155-PC, Doc.
44, at 21 (D. Utah July 6, 2005), aff’d, 479 F.3d 1269 (10th Cir.
2007), that the DNF Plan does not require the DNF to monitor
aquatic macroinvertebrates where, as here, it is undisputed no
fish reside in the streams.
See id. (“The Forest Plan discusses
macroinvertebrates as an alternative aquatic habitat indicator
for assessing ‘fish habitat capability’ where fish population
data is not available for a particular body of water.
does not indicate that any body of water in the Dark Valley
project provides fish habitat, and thus, there was no obligation
to consider any fish habitat indicator, including
macroinvertebrates, before approving the Dark Valley Vegetation
UEC conceded in its oral argument that there are no fish in
the project area streams.
Thus, in accordance with
Judge Cassell’s decision in Troyer, the DNF Plan does not require
the DNF to monitor macroinvertebrates in the project area
Further, the approved action does not implicate a species’
viability; therefore, the DNF has complied with its plan.
Utah Envtl. Cong. v. Bosworth, 370 F. Supp. 2d 1157, 1172 (D.
Utah 2005), aff’d Utah Envtl. Cong., 443 F.3d at 744.
has imposed mitigation measures to prevent any effects on the
For example, the DNF has prohibited any
mechanized timber harvesting within 150 feet of streams in the
project area (AR 14022).
This restriction will reduce sediment
that may enter the streams; further, because the dead trees do
not currently provide shade, removing them by hand or helicopter
along the banks of streams will not adversely affect shade and
(AR 4067, 14064.)
Also, the DNF has
prohibited prescribed burn activities within 100 feet of streams,
reducing the ash that may enter the aquatic habitat.
The DNF concluded that with these mitigation
measures, “implementation of either action alternative would not
result in detrimental impacts to aquatic biota populations or
habitat, beyond the current trend and condition of the area.”11
Also, because the record establishes there are no
fish populations within 8 miles of the project area (AR 3521-22),
there is no connection between the project and any potential harm
to fisheries (AR 3526-27).
Thus, no nexus exists between the
Defense counsel explained at oral argument regarding the
We are not destroying or doing anything to
the rivers and streams themselves, all we are
saying is the way we’re going to construct
the project is it won’t interfere with these
streams . . . we are going to develop around
them and act in such a way that it is not
going to harm them.
(Tr. at 32.)
project and measurable effects to aquatic macroinvertebrates or
The DNF concluded that “implementation of
either action alternative would not result in detrimental impacts
to aquatic biota populations or habitat, beyond the current trend
and condition of the area.”
UEC cites to a summary of a literature review in the record
in an effort to refute the DNF’s site-specific analysis.
review was conducted by DNF personnel on the effects of fire on
aquatic habitat in the southwestern United States.
The review does not provide any site-specific analysis as to
Defendants or the project area.
Moreover, the literature review
did not consider the mitigation measures of having 100-foot
buffer zones for prescribed burns and 150-foot buffer zones for
Therefore, UEC’s citation to the
literature review does not refute the DNF’s site-specific
As a result, the court concludes the UEC’s argument
regarding aquatic microinvertebrates does not establish that the
DNF’s decision was arbitrary and capricious, an abuse of
discretion, or otherwise not in accordance with law.
Further, citing to AR 3545, 3554, 3548, 3563, 3566, 3569,
3572, 3575, 3578, 3581, 3564, 3585, 3643, and 3726, Defendants
point out that numerous surveys show that the DNF actually met or
exceeded 70 BCI for aquatic macroinvertebrates in the DNF.
Third, UEC argues that the DNF failed to provide the
required protection for the northern goshawk, which, according to
UEC, is both an MIS and a DNF sensitive species.
(Doc. 15, at
UEC argues that the project area contains goshawk habitat
which, according to the Wildlife Report, will be impacted by the
project for 25-30 years. (Doc. 15, at 47 (citing AR 6292).)
Also, UEC points out that the record provides that “[f]oraging
individuals may not use the area during treatments and are likely
to disperse to other areas to forage within and adjacent to the
However, this would be a short term (2-5 years)
effect until the proposed activities are finished.”
argues that based on the project’s effects to the goshawk’s
habitat and to “foraging individuals,” the proposed project “will
further degrade the habitat of this sensitive species violat[ing]
the Forest Plan Goshawk Amendment and the Forest Service Manual
direction on sensitive species.”
(Doc. 15, at 47-48.)
The court has reviewed the record and pleadings and is
unpersuaded by UEC’s argument.
As Defendants point out, there
are no known goshawks within the project area (AR 6259), the DNF
was unable to either locate any goshawk nests or observe any in
the project area (AR 6259), and UEC has failed to cite any
evidence to the contrary.
It strains credulity to argue the
project will affect the goshawks when there are none in the area.
Nevertheless, the DNF did determine the project area may
serve as suitable goshawk nesting habitat because the project
area could support both goshawks and their prey (AR 6259);
however, much of the northern goshawks’ prey has left the project
area to find more favorable living conditions because the spruce
beetle epidemic destroyed hundreds of acres of trees on which the
northern goshawks’ prey relies (AR 6260, 14041, 14072).
result, the project area no longer serves as suitable goshawk
nesting or foraging habitat.
Given these conditions, the DNF designed the approved
project to improve goshawk habitat while reducing the risk of
catastrophic fire, which would further destroy goshawk habitat.
To accomplish these objectives, the DNF required that the project
maintain “300 snags per 100 acres in the spruce-fir cover type
and 200 snags per 100 acres in the aspen cover type,” in
compliance with the Guidelines in the Utah Northern Goshawk
Amendment to the Forest Plan.
Further, the DNF
required that the project “provide for the needs of a wide
variety of wildlife, an average of 100 tons per 10 acres of woody
debris in the spruce-fir cover type and 30 tons per 10 acres in
the aspen cover type would be retained following the guidelines
outlined in the Utah Northern Goshawk Amendment to the Dixie
Also, the project would aim for a goal of
150 live trees per acre and would distribute trees within the
project area to provide for quality goshawk foraging habitat. (AR
The DNF also stated that if goshawk nests are found
within the project area during the project, then it would follow
the relevant protocols in the Utah Northern Goshawk Amendment to
the Dixie Forest Plan.
Based on this analysis, the
DNF determined that the project would benefit goshawk habitat.
Despite the DNF’s analysis, UEC claims that the project will
cause short-term degradation to goshawk habitat and, therefore,
the project fails to comply with the DNF Plan.
UEC claims that
goshawk habitat impermissibly will be affected in the short-term
because 293 acres of aspen habitat will be treated during the
DNF’s approved project.
(Doc. 15, at 47.)
UEC fails to mention
that the DNF expressly found that treating the 293 acres of aspen
will improve aspen habitat, which will greatly benefit the
goshawk in the long term.
Further, instead of
contradicting the findings of the “Management Recommendations for
the Northern Goshawk in the Southwestern United States,” as UEC
suggests, the treatment of aspen habitat follows those findings.
Those management recommendations were “designed to produce forest
conditions that will sustain goshawk populations by minimizing
long-term loss of their habitat due to unfavorable environmental
conditions . . . .”
(AR 11333 (in Reynold’s Report)), and the
record supports that the proposed project will make long term
improvements to the goshawk habitat (AR 6292).
court concludes that UEC has not shown the DNF has not complied
with its plan regarding the northern goshawk.
Finally, UEC argues the DNF also failed to provide the
required protection for the three-toed woodpecker, another
sensitive species; having examined the arguments and record, the
court is persuaded the DNF complied with its plan and NFMA as to
the three-toed woodpecker.
As with the northern goshawk, the
DNF’s surveys revealed that no three-toed woodpeckers were within
the project area, and that the project area contains only a small
portion of suitable habitat for the woodpecker.
In addition, to maintain the suitable habitat that exists in
the project area, the DNF designed the project to leave a minumum
of 300 snags per 100 acres greater than eighteen inches in
(AR 14042, 14052.)
Also, the DNF determined that
closing and decommissioning roads improves three-toed woodpecker
habitat by reducing human access to it.
(AR 6293, 6296.)
UEC asserts that the DNF did not comply with its plan
because it lacks information on the woodpecker.
rejects this argument because the DNF made a good faith effort to
locate the three-toed woodpecker through surveys but did not find
The DNF is required to make a “good faith
effort” to obtain information on a particular species, and “is
not otherwise required ‘to attempt to track species where no
population [thereof] exists. . . .’”
Utah Envtl. Cong., 479 F.3d
at 1285 (quoting Utah Envtl. Cong., 372 F.3d at 1230 (alteration
The record supports that the DNF fulfilled its
obligations under the DNF Plan as to the three-toed woodpecker.
Thus, the court concludes UEC has not adequately shown the DNF
did not fulfill its obligations under the DNF Plan as to the
In summary, the court concludes that UEC has not shown the
DNF’s decision was arbitrary and capricious because it did not
comply with the DNF Plan.
The Forest Service examined relevant
data and articulated a satisfactory explanation for its action,
including articulating a rational connection between the facts
found and the choices that the Forest Service made.
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S.
29, 43 (1983).
Based on the above analysis, IT IS HEREBY ORDERED that UEC’s
request that the court reverse approval of the Mt. Dutton Project
UEC has not demonstrated that the approval of the Mt.
Dutton Project was arbitrary and capricious, an abuse of
discretion, or otherwise not in accordance with law.
Accordingly, the Clerk of the Court is directed to close
DATED this 14th day of October, 2011.
BY THE COURT:
United States Magistrate Judge
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