Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SIERRA CLUB v. BOSWORTH

April 17, 2002

SIERRA CLUB ET. AL., PLAINTIFFS,
V.
DALE BOSWORTH, IN HIS OFFICIAL CAPACITY AS CHIEF OF THE UNITED STATES FOREST SERVICE, AND UNITED STATES FOREST SERVICE, AN AGENCY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, DEFENDANTS.



The opinion of the court was delivered by: Chesney, District Judge.

         
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' AND DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT (Docket Nos. 21, 29, 36)

Before the Court are cross-motions for summary judgment, filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. The mailers came on regularly for hearing on March 15, 2002. Marc Fink of Western Environmental Law Center appeared on behalf of plaintiffs. Charles O'Connor, Assistant United States Attorney, appeared on behalf of defendant United States Forest Service ("Forest Service"). Having considered the papers filed in support of and in opposition to the motions and the arguments of counsel, the Court rules as follows.

BACKGROUND

In the instant action, plaintiffs challenge the adequacy of the Final Environmental Impact Statement ("EIS" or "FEIS") prepared by the Forest Service in connection with the Fuels Reduction for Community Protection project ("Fuels Reduction Project") on the Six Rivers National Forest ("Six Rivers"). In August, 1999, three small fires known as the Megram, Fawn, and Onion fires (collectively the "Big Bar Complex Fires") ignited on the Shasta-Trinity National Forest. After merging with the Fawn fire, the Megram fire burned approximately 59,220 acres of the Six Rivers National Forest, as well as many acres of the adjacent National Forests, an Indian Reservation, and private lands, before the fire was controlled on November 4, 1999.

The fire created extensive areas of dead and dying trees and shrubs which the Forest Service believes may become fuels for future fires. In an effort to reduce the intensity and severity of future wild fires within Six Rivers, the Forest Service has proposed numerous commercial logging projects designed to construct "strategic fuel breaks" and to "reduce fuels" in already burned areas.*fn1 In the instant action, plaintiffs challenge the EIS prepared in connection with Phase 1 of the Fuels Reduction Project ("Phase 1"), asserting that the EIS violates the National Environmental Policy Act (NEPA), and the National Forest Management Act ("NFMA").

LEGAL STANDARD

A. Judicial Review under the APA

Plaintiffs's claims are reviewed under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706. See Marsh v. Oregon National Resources Council, 490 U.S. 360, 375-76 (1989). Under the APA, courts must "set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "without observation of procedure required by law." See 5 U.S.C. § 706(2)(A) & (D). In determining whether an agency action is "arbitrary, capricious, or an abuse of discretion," the court considers whether the agency decision "was based on a consideration of the relevant factors and whether there has been a clear error of judgment." See Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998). When evaluating the adequacy of an EIS, the court must determine whether the EIS contains "a reasonably thorough discussion of the significant aspects of the probable environmental consequences." See Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1376 (9th Cir. 1998). The court must ensure that the agency took a "hard look" at the environmental effects of the proposed action. See Vermont Yankee v. National Resources Defense Council, 435 U.S. 519, 535 (1978).

In interpreting NEPA, courts give substantial deference to the regulations issued by the Council on Environmental Quality ("CEQ"). See 42 U.S.C. § 4342 et. seq.; Marsh v. Oregon National Resources Council, 490 U.S. 360, 378 (1989) (holding CEQ regulations entitled to substantial deference).

B. Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure provides that a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking summary judgment show the absence of a genuine issue of material fact. The moving party need not produce admissible evidence showing the absence of a genuine issue of material fact when the nonmoving party has the burden of proof, but may discharge its burden simply by pointing out that there is an absence of evidence to support the nonmoving party's case. See Celotex, 477 U.S. at 324-25. Once the moving party has done so, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate "specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(c)). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). When determining whether there is a genuine issue for trial, "inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita, 475 U.S. at 587 (citation omitted).

DISCUSSION

A. Violations of NEPA

NEPA requires that impacts of "major Federal actions significantly affecting the quality of the human environment" be considered and disclosed in a detailed EIS. See 42 U.S.C. § 4332(2)(C). NEPA, therefore, "ensures that the agency . . . will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience." See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Under NEPA, the Court must "ensure that the procedure followed by the Service resulted in a reasoned analysis of the evidence before it, and that the Service made the evidence available to all concerned." See Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985).

Plaintiffs claim that the EIS prepared for Phase 1 violates NEPA "because it [1] fails to disclose and address the scientific evidence that directly contradicts both the statement of need and environmental analysis for the proposed action; [2] fails to adequately assess cumulative impacts; [3] fails to include all connected, cumulative and similar post-fire projects; and [4] fails to adequately address the likely impacts to soils in the projected areas." (See Pl. Mem. at 11.)

1. Purpose and Need

a. Lack of Supporting Evidence

The Forest Service states that the purpose of Phase 1 is to "protect[] local communities from catastrophic wildfires and extended exposure to smoke" by "reduc[ing] fuels." (See AR 246.) According to the Forest Service, the Phase 1 project will reduce the intensity of future wildfires by removing the "fuels" that help to spread the fires.

Plaintiffs assert that the EIS violates NEPA by failing to disclose the lack of scientific evidence supporting the Forest Service's belief that the Phase I logging project will reduce the intensity of future wildfires and by failing to address reports that contradict the Forest Service's belief See Seattle Audubon Society v. Lyons, 871 F. Supp. 1291, 1318 (W.D. Wash. 1994) (holding EIS must "disclose responsible scientific opinion in opposition to the proposed action, and make a good faith, reasoned response to it."). In particular, plaintiffs note that the EIS fails to disclose or discuss that a "Literature Review" of post-fire logging studies, completed by the Forest Service's Pacific Northwest Research Station in 2000, "found no studies documenting a reduction in fire intensity in a stand that had previously burned and then been logged."*fn2 (See Fink Dec. Exh. A, p. 21.) Plaintiffs also assert that the EIS fails to disclose and analyze an independent report on ecologically sound post-fire salvage logging, known as the "Beschta report," which also concluded that "no evidence supporting the contention that leaving large dead woody material significantly increases the probability of reburn."*fn3 Plaintiffs point out that the Forest Service, in its Literature Review, acknowledged there is an "intense debate" over post-fire logging and yet the EIS, plaintiffs' assert, fails to disclose or analyze the contrary opinions and fails to "address the uncertainties surrounding the scientific opinion upon which the entire project is founded." (Pl. Reply at 1.)

In response, the Forest Service does not contend that the EIS discloses or analyzes the scientific evidence that supports or that contradicts the goals of the Phase 1 project. Rather, the Forest Service contends that evidence supporting its position can be found within the administrative record and that its scientists did, in fact, consider contrary opinions, including the Beschta report.

It is not an adequate alternative, however, to merely include scientific information in the administrative record. NEPA requires that the EIS itself "make explicit reference . . . to the scientific and other sources relied upon for conclusions in the statement." See 40 C.F.R. § 1502.24; see also Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (1st Cir. 1980) ("We find no indication in [NEPA] that Congress contemplated that studies or memoranda contained in the administrative record, but not incorporated in any way into an EIS, can bring into compliance with NEPA an EIS that by itself is inadequate"); Blue Mountains Biodiversity Proiect v. Blackwood, 161 F.3d 1208, 1214 (9th Cir. 1998) (holding Environmental Assessment ("EA") inadequate where EA contained "virtually no reference to any material in support of or in opposition to its conclusions;" deficiency not cured by support contained in administrative record.)

Nor does the fact that the Forest Service's scientists may have considered contrary opinions, such as the Beschta report, constitute sufficient compliance with NEPA where the EIS fails to disclose or analyze such opinions.*fn4 See Seattle Audubon Society v. Moseley, 798 F. Supp. 1473, 1482 (W.D. Wash. 1992) ("NEPA requires that the agency candidly disclose in its EIS the risks of its proposed action, and that it respond to the adverse opinions held by respected scientists."); Lyons, 871 F. Supp. at 1318 ("An EIS must . . . candidly disclose the risks and any scientific uncertainty. It must also disclose responsible scientific opinion in opposition to the proposed action, and make a good faith, reasoned response to it.") (citations omitted).

Accordingly, the Court concludes that the Phase 1 EIS violates NEPA by failing to disclose and analyze scientific opinion in support of and in opposition to the conclusion that the Phase 1 project will reduce the intensity of future wildfires in the project area.

b. Contrary Scientific Evidence

Plaintiffs also assert that the EIS fails to disclose and analyze scientific opinion that is directly opposed to post-fire logging on the ground that it has a detrimental effect on the environment. Specifically, plaintiffs assert that the Forest Service erred in failing to disclose and analyze studies, such as the Beschta report, which recommended that no salvage logging occur in sensitive areas including severely burned areas and erosive sites. According to plaintiffs, the "EIS does not mention or discuss the substantial weight of scientific evidence that opposes logging in the aftermath of intense wildfire" and, thus, members of the public who are ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.