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Environmental Protection Information Center v. Blackwell

October 13, 2004

ENVIRONMENTAL PROTECTION INFORMATION CENTER, PLAINTIFF,
v.
JACK BLACKWELL, ET AL., DEFENDANTS.



ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Docket Nos. 29, 30)

Plaintiff Environmental Protection Information Center ("EPIC") has filed suit against the United States Forest Service ("FS") and various individuals in their official capacities, alleging that the FS violated both the National Environmental Policy Act ("NEPA") and the National Forest Management Act ("NFMA") by authorizing the Divide Auger ("DA") Timber Sale in the Mendocino National Forest ("MNF"). More specifically, EPIC asserts that the FS violated NEPA: (1) by failing to take a hard look at the cumulative impacts on late-successional wildlife and wildlife habitat; (2) by failing to provide a convincing statement of reasons for its finding of no significant impact ("FONSI"); (3) by failing to consider a reasonable range of alternatives; and (4) by failing to diligently involve the public. EPIC contends that the FS violated NFMA by failing to ensure species diversity and viability with respect to the northern spotted owl, the northern goshawk, the Pacific fisher, and the American pine marten.

The parties filed cross-motions for summary judgment on April 14, 2004. A hearing on the motions was held on June 9, 2004. Supplemental briefing was provided by the parties in August and September 2004. Having reviewed the parties' briefs and accompanying submissions as well as the administrative record, and having considered the oral argument of counsel, and good cause appearing therefor, the Court hereby GRANTS in part and DENIES in part EPIC's motion for summary judgment and GRANTS in part and DENIES in part the FS's motion for summary judgment. Because EPIC's motion for summary judgment is granted in part, the Court issues an injunction as discussed in further detail below.

I. FACTUAL BACKGROUND

At issue in this case is the FS's decision to authorize the DA Timber Sale, which will take place in the MNF. The MNF is governed by the MNF Land and Resource Management Plan of 1995 ("MNF Plan") as well as by the Northwest Forest Plan of 1994 ("NW Forest Plan"). See AR 2029 (MNF Plan; stating that the MNF Plan "fully incorporates all applicable land allocations and standards and guidelines" of the NW Forest Plan).

The NW Forest Plan provides in part standards and guidelines for management of habitat for late-successional and old-growth forest related species within the range of the northern spotted owl. See AR 1604 et seq. (NW Forest Plan). "Late-successional forests are those forest seral stages that include mature and old-growth age classes." AR 1703 (NW Forest Plan). Species that depend on old-growth forests include the northern spotted owl, goshawk, fisher, and marten. See AR 4451 (MIS Report). Indeed, each of these species is considered a management indicator species ("MIS") for old-growth forests. See AR 4451 (MIS Report). MIS

function as barometers for wildlife communities. These species were selected because: 1) they are believed to represent the vegetation types, successional stages, and special habitat elements necessary to provide for viable populations of all species in the Forest; and 2) their population changes are believed to indicate or represent the effects of management activities on wildlife and fish.

AR 1982 (MNF Plan); see also AR 1984 (MNF Plan; listing MIS and ecological elements represented in Table 3-9).

The NW Forest Plan allocates land into seven different categories. For purposes of this case, the two categories that merit discussion are late-successional reserves ("LSRs") and matrix lands. LSRs are federal lands within the range of the northern spotted owl that "are designed to serve as habitat for late-successional and old-growth related species including the northern spotted owl." AR 1615 (NW Forest Plan). A fully functional LSR is not only one that "contain[s] well connected late successional habitat" but also is "connected to other LSRs through dispersal habitat for both aerial and ground traversing species." AR 3360 (LSR Assessment).

Matrix lands are federal lands within the range of the northern spotted owl "in which most timber harvest and other silvicultural activities will be conducted."*fn1 AR 1616 (NW Forest Plan). While most timber harvest will be conducted in matrix lands, matrix lands also "contain nonforested areas as well as forested areas that may be technically unsuited for timber production." AR 1616 (NW Forest Plan). In addition, when there is a northern spotted owl activity center on matrix land - "'[a]ctivity center' is defined as an area of concentrated activity of either a pair of spotted owls or a territorial single owl" - then "[o]ne hundred acres of the best northern spotted owl habitat will be retained as close to the nest site or owl activity center as possible" and "[t]imber management activities within the 100-acre area should comply with management guidelines for Late-Successional Reserves." AR 1746 (NW Forest Plan). This one hundred acre area is called a "100 acre LSR/core." AR 4421 (Wildlife BA; defining term as "an area of 100 acres of the most suitable habitat designed for each [activity center] on Matrix land occurring outside of the LSR RC network"). The area of habitat within a 1.3-mile radius from an owl activity center is called the home range. See AR 4421 (Wildlife BA); see also AR 4507 (MIS Report; stating that, "[b]ecause . . . the actual configuration of the home range is rarely known, the estimated home range of an owl pair is represented by a circle with an area of 3,340 acres, with a 1.3-mile radius centered upon the owl activity center"). The Fish & Wildlife Service ("FWS") recommends a minimum of 1,336 acres of nesting and foraging habitat - i.e., 40 percent of the acres in the home range - to support a pair of nesting spotted owls. See AR 4467 (FWS Biological Opinion).

The DA Timber Sale will take place on matrix lands in the MNF, more specifically on matrix lands in the Thomes Creek Watershed. See Docket No. 40 (map).*fn2 The entire project area for the DA Timber Sale encompasses 2,882 acres, see AR 4415 (Wildlife BA), and is divided into a northern portion and a southern portion. See Docket No. 40 (map); see also AR 4583-84 (maps). There is a total of twenty-one harvest units, thirteen in the north and eight in the south. See AR 4415 (Wildlife BA). The northern part of the project is located directly between the Yolla Bolly Middle Eel Wilderness ("YBME Wilderness") and the Buttermilk LSR (also known as RC 309) and encompasses two northern spotted owl activity centers known as 1008 and 1052. See Docket No. 40 (map); AR 4583 (map). The southern part of the project is located close to a portion of the Buttermilk LSR and encompasses owl activity center 1001. See Docket No. 40 (map); AR 4584 (map).

In February 2002, the FS issued for public comment its first Environmental Assessment ("EA") for the DA Timber Sale. See AR 4588 (Decision Notice and FONSI). "As a result of public comments, the . . . proposed action was dropped and a new proposed action developed." AR 4588-89 (Decision Notice and FONSI). In October 2002, a new EA was issued for public comment, and a legal notice regarding the sale was posted in November 2002. See AR 4589 (Decision Notice and FONSI). This EA put forth three alternatives with respect to the DA Timber Sale: (1) no action (Alternative A), (2) logging in the southern harvest units only (Alternative B), or (3) logging in both the northern and southern harvest units (Alternative C, the proposed action). See AR 4600-06 (EA).

Based on the EA, the FS issued its Decision Notice and FONSI on June 6, 2003. See AR 4592 (Decision Notice and FONSI). The FS selected Alternative C as the preferred alternative. See AR 4591 (Decision Notice and FONSI). Under Alternative C, the proposed action, 4.5 million board feet ("MMBF") of timber from 264 net acres of forest land will be harvested, for a net value of approximately $665,542. See AR 4588 (Decision Notice and FONSI). "Based on silvicultural review, approximately 123 acres are proposed for green tree retention, 101 acres would have the over story trees removed and 40 acres of the oldest, best condition trees would be retained to provide habitat for old growth wildlife and vegetation."*fn3 AR 4593 (EA). The forty acres were retained pursuant to the MNF Plan, which provides as a forest-wide standard and guideline, "[m]aintain at least 15% of federal forest lands within fifth field watersheds (20-200 square miles) in latesuccessional forest." AR 2020 (MNF Plan).

"Approximately five acres of nesting habitat [for the northern spotted owl] and 154 acres of foraging habitat [will] be removed" under Alternative C, the proposed action. AR 4470 (MIS Report); see also AR 4468 (MIS Report; noting that, in the project area, there are approximately 768 acres of nesting habitat and 399 acres of foraging habitat and that, in the Thomes Creek Watershed, there are approximately 16,036 acres of nesting habitat and 16,424 acres of foraging habitat). The five acres of nesting habitat will be from the southern units as will approximately 54 of the 154 acres of foraging habitat.*fn4 See AR 4424 (Wildlife BA); AR 4469-70 (MIS Report).

According to the EA for the DA Timber Sale, the sale will serve the following purposes and needs:

(1) "[T]o achieve a desired condition of an even-age, fire resilient forest while providing an adequate timber supply that contributes to economic stability of rural communities by generating economic activity, income and employment."*fn5

(2) "[To] minimiz[e] the spread of . . . pathogens [such as insects and diseases] to prevent . . . [l]oss of timber volume[;] [r]eduction in visual quality . . . caused by the longterm loss of trees due to insect and disease manifestations[;] [i]ncreased fuels near the wilderness boundary from dead and dying trees[;] [s]pread of insects and disease within riparian reserves, late successional reserves, and the wilderness that would result in the loss of dispersal habitat for wildlife species." The disease H. annosum is a special concern for the northern units. While this disease is a "normal part of western forest ecosystems and contributes to structural and compositional diversity," it "has increased in recent decades."

(3) "[T]o increase the presence of mixed conifers, decrease the presence of red and white fir, and to protect and encourage the growth of oak."

(4) "[T]o reduce natural fuels to levels that can be managed with hand crews . . . ."

AR 4594-95 (EA).

II. LEGAL STANDARD

A. Judicial Review of Agency Action

Both parties agree, as does the Court, that judicial review of the FS's Decision Notice and FONSI is governed by the Administrative Procedure Act ("APA"). See 5 U.S.C. § 706; see also Earth Island Inst. v. United States Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2003) (stating that judicial review of agency decisions under both NEPA and NFMA is governed by APA). Under Section 706(2), a reviewing court shall "hold unlawful and set aside agency action, findings and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "without observance of procedure required by law." Id. § 706(2)(A), (D).

The Supreme Court has stated that, as a general rule under the APA,

[t]he scope of review under the "arbitrary and capricious" standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a "rational connection between the facts found and the choice made." In reviewing that explanation, we must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, 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. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency's action that the agency itself has not given. We will, however, "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned."

Motor Vehicle Manufacturers Ass'n of United States v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983); see also Westlands Water Dist. v. United States Department of Interior, 376 F.3d 853, 865 (9th Cir. 2004) ("[A] reviewing court 'must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. This inquiry must be searching and careful, but the ultimate standard of review is a narrow one.'").

B. Injunctive Relief

The Supreme Court has also stated that, unless a statute restricts a court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987). The authority to order injunctive relief obtains under NEPA and NFMA. The Ninth Circuit has specifically noted that "[t]here is nothing in NEPA to indicate that Congress intended to limit [a] court's equitable jurisdiction." Save the Yaak Committee v. Block, 840 F.2d 714, 722 (9th Cir. 1988). Although the Ninth Circuit does not appear to have addressed this issue squarely with respect to NFMA, it has proceeded under the assumption that claims under the statute encompass injunctive relief. See, e.g., Forest Conservation Council v. United States Forest Serv., 66 F.3d 1489, 1496 (9th Cir. 1995) (discussing whether injunction should issue if district court found violation of either NEPA or NFMA).

There are well-established principles governing awards of injunctive relief. See Save the Yaak, 840 F.2d at 722. Generally, the basis for such relief is irreparable injury and inadequacy of legal remedies. "'In each case, a court must balance the competing claims of injury and must consider the effect on each party of granting or withholding of the requested relief.'" Id. In the context of environmental claims, the Ninth Circuit has indicated that, absent "unusual circumstances," injunctive relief is the appropriate remedy for a violation of either NEPA or NFMA. See Forest Conservation, 66 F.3d at 1496 (noting that, if court determines there is violation of either statute, injunction "will not automatically issue" and that defendant "should be allowed to present evidence to the court that 'unusual circumstances' weigh against the injunction sought, and to present evidence to assist the court in fashioning the appropriate scope of whatever injunctive relief is granted"). Absent documentation of such "unusual circumstances," injunctive relief typically follows from a finding of a violation of NEPA or NFMA in a case such as this. The Court therefore first focuses on the substantive claims.

III. DISCUSSION

A. NEPA

1. Cumulative Effects

EPIC's first argument is that the FS violated NEPA because it failed to take a hard look at the cumulative effects of the DA Timber Sale and other sales on late-successional wildlife and wildlife habitat.

NEPA is "'our basic national charter for protection of the environment.'" Center for Biological Diversity v. United States Forest Serv., 349 F.3d 1157 1166 (9th Cir. 2003); see also 40 C.F.R. § 1500.1 (same). There are two goals underlying the statute: "(1) to ensure that the agency will have detailed information on significant environmental impacts when it makes decisions; and (2) to guarantee that this information will be available to a larger audience." Neighbors of Cuddy Mt. v. Alexander, 303 F.3d 1059, 1063 (9th Cir. 2002) [hereinafter Alexander]; see also Earth Island, 351 F.3d at 1300 ("NEPA requires that a federal agency 'consider every significant aspect of the environmental impact of a proposed action . . . [and] inform the public that it has indeed considered environmental concerns in its decision-making process.'").

"NEPA does not contain substantive environmental standards and guidelines, nor does the Act mandate 'that agencies achieve particular substantive environmental results.'" Center for Biological Diversity, 349 F.3d at 1166. Rather, "NEPA imposes procedural requirements designed to force agencies to take a 'hard look' at [the] environmental consequences" of their actions. Earth Island, 351 F.3d at 1300. "This includes considering all foreseeable direct and indirect impacts.

Further, NEPA requires that an environmental analysis for a single project consider the cumulative impacts of that project together with all past, present and reasonably foreseeable future actions." Idaho Sporting Cong. v. Rittenhouse, 305 F.3d 957, 973 (9th Cir. 2002) [hereinafter Rittenhouse] (emphasis added); see also 40 C.F.R. § 1508.7 (defining cumulative impact as "the impact on the environment which results from the incremental impact of the [proposed agency] action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions"). The regulations implementing NEPA*fn6 note that "[c]umulative impacts can result from individually minor but collectively significant actions taking place over a period of time." Id.

Notably, an agency must take a hard look at cumulative impacts whether an EIS or EA is involved. See Churchill County, 276 F.3d at 1081 (interpreting the regulations implementing NEPA as requiring that an EIS consider the cumulative impacts of the proposed agency action); Kern v. United States Bureau of Land Mgmt., 284 F.3d 1062, 1076 (9th Cir. 2002) (stating that an EA "may be deficient if it fails to include a cumulative impact analysis"). In fact, even though an EA is supposed to be a "concise public document," 40 C.F.R. § 1508.9, the Ninth Circuit has underscored the importance of a cumulative impacts analysis in an EA:

The importance of analyzing cumulative impacts in EAs is apparent when we consider the number of EAs that are prepared. The Council on Environmental Quality noted in a recent report that "in a typical year, 45,000 EAs are prepared compared to 450 EISs. . . . Given that so many more EAs are prepared than EISs, adequate consideration of cumulative effects requires that EAs address them fully."

Kern, 284 F.3d at 1076 (quoting CEQ, Considering Cumulative Effects Under the National Environmental Policy Act 4 (Jan. 1997), also available at http://ceq.eh.doe.gov/nepa/ccenepa/ccenepa.htm (last visited October 13, 2004)). Because cumulative impacts analysis is important to both an EIS as well as an EA, the Court concludes that it is appropriate to look to case law on cumulative impacts analyses in EISs for guidance even though this case involves an EA rather than an EIS.

As noted above, EPIC argues that the FS violated NEPA by failing to take a hard look at the cumulative impacts of the DA Timber Sale and other sales on late-successional wildlife and wildlife habitat. More specifically, EPIC contends that the FS failed to take a hard look at the cumulative impacts because (1) the FS made conclusions about cumulative impacts even though it did not have adequate information about past timber sales or reasonably foreseeable future timber sales; (2) the FS's determinations about cumulative impacts were conclusory, "providing only generalized statements of impacts," Pl.'s Mot. at 11; and (3) the FS did not consider as part of its cumulative impacts analysis the effects that roads would have. Each argument is addressed below.

However, before addressing each argument, the Court notes briefly that, in making the above arguments, EPIC criticizes the cumulative impacts analysis provided in not only the EA but also the wildlife specialists' reports underlying the EA. There are three specialists' reports that are relevant:

NAMECITATION TO ARPURPOSE OF REPORT Biological Assessment, Divide Auger Timber Sale, Grindstone Ranger District, Mendocino National Forest (a.k.a. Wildlife BA)AR 4411-46"[T]o analyze the proposed activities associated with the Divide Auger Timber Sale to determine the effects upon federally Threatened and Endangered species [including the northern spotted owl], and to determine whether formal consultation or conferencing with the US Fish and Wildlife Service (FWS) is required." AR 4412 (Wildlife BA). Divide Auger T.S. Effects of Alternatives, Wildlife Specialist's Report (a.k.a. MIS Report)AR 4447-84To examine the effects of the DA Timber Sale (all three alternatives) on MIS, including the northern spotted owl, goshawk, fisher, and marten. See AR 4451 (MIS Report). Biological Evaluation, Divide Auger Timber Sale, Grindstone RD, Mendocino NF (a.k.a. Wildlife BE)AR 4530-82"[T]o analyze the proposed activities associated with the Divide Auger Timber Sale to determine the effects upon Forest Service Sensitive species [including the goshawk, marten, and fisher], and to determine whether proposed activities would result in a trend toward Forest Service Sensitive species becoming federally listed." AR 4531 (Wildlife BE).

To the extent the environmental analysis in the EA incorporates and depends upon the analyses in these specialists' reports, the adequacy of the analyses in the specialists' reports must be scrutinized.

a. Information About Past and Reasonably Foreseeable Future Timber Sales

As stated above, EPIC asserts that, because the FS did not have sufficient information about past timber sales or reasonably foreseeable future timber sales, it failed to take a hard look at cumulative effects.

Regarding past timber sales, EPIC does not dispute that the FS properly identified such sales. See AR 4434 (Wildlife BA; listing past sales that occurred within and 1.3 miles from the proposed DA project); AR 4478 (MIS Report; same); AR 4570 (Wildlife BE; same); cf. Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 800, 809-10 (9th Cir. 1999) (stating that an EIS "must 'catalogue adequately the relevant past projects in the area'"); Lands Council v. Vaught, 198 F. Supp. 2d 1211, 1246 (E.D. Wash. 2002) ("[T]he failure to identify [past] projects prevents the decisionmaker from knowing what projects have been included and therefore from making an informed decision."). Rather, EPIC contends that, even though the FS knew what past sales took place, the agency did not know what the effects of those past sales were. In support, EPIC points to the wildlife specialists' reports, which state that "[i]t is unknown what silvicultural prescriptions were utilized to harvest these [past timber] sales." AR 4434 (Wildlife BA); AR 4478 (MIS Report); AR 4570 (Wildlife BE).

In response, the FS argues that it does not matter what silvicultural prescriptions were actually used to harvest the past timber sales so long as the agency knew what the results of those silvicultural prescriptions were - i.e., how much late-successional forest remained after the sales. See 40 C.F.R. § 1508.7 (stating that "[c]umulative impact" is "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") (emphasis added). The FS asserts that it knew what the results of the past silvicultural prescriptions were based on a table in the MIS Report and a table in the EA. See AR 4448-49 (MIS Report; detailing, inter alia, the current number of acres for each timber strata in the harvest units for the DA Timber Sale); see also AR 4609-10 (EA; same).

The problem for the FS is that, even if these tables reflect how much late-successional forest remained after the sales, they do not provide any "discussion of how [past] projects (and differences between the projects) have harmed the environment." Lands Council v. Powell, 379 F.3d 738, 744 (9th Cir. 2004). Furthermore, these tables only provide information about late-successional forest for the harvest units of the DA Timber Sale; they say nothing about the results of the past silvicultural prescriptions for land within the project/analysis area but outside of the harvest units. The project area is the acreage within the project area boundary, not just the harvested units. The analysis area is the acreage within the project area plus a 1.3-mile radius surrounding the project boundary. See AR 4450 (MIS Report; noting that analysis area "acreage is used for those species that are wide ranging"). The entirety of the project/analysis area, not just the harvest units themselves, is relevant to assessment of the impact on late-successional wildlife and wildlife habitat.

At the hearing on the parties' motions for summary judgment, the Court expressly asked the FS for record evidence demonstrating that it considered the effects of the past timber sales for land within the project/analysis area but outside of the harvest units. The FS failed to do so. While the agency claimed that the wildlife specialists made field visits to the project/analysis area, the reports suggest that the specialists looked only at the harvest units themselves, not land outside of the harvest units. See, e.g., AR 4413-14 (Wildlife BA; listing field visits made "to review units and prescriptions"). Similarly, while the reports indicate that the specialists did consider, inter alia, aerial photographs and maps of the project/analysis area, again the focus of the specialists was on the harvest units; nothing was said in the reports about the status of late-successional forest in the land outside of the harvest units. See, e.g., AR 4415 (Wildlife BA; discussing timber strata in certain harvest units).

Thus, although there is a record of prior harvested areas within the project/analysis area for the DA Timber Sale, the FS failed to conduct the necessary cumulative effects analysis for two reasons. First, the tables reflect only limited information about the areas to be harvested for the DA Timber Sale. See Lands Council, 379 F.3d at 745 ("[I]n assessing cumulative effects, the Environmental Impact Statement must give a sufficiently detailed catalogue of past, present, and future projects, and provide adequate analysis about how these projects, and differences between the projects, are thought to have impacted the environment.") (emphasis added). Second, the tables do not in any way provide information about the areas within the DA project/analysis area outside of but proximate to the harvested areas. Because the FS did not have information about the effects of past timber sales on all of the land within the project/analysis area (only the effects within the harvest units for the DA Timber Sale), the Court cannot say that the FS satisfied its duty to take a hard look at the cumulative impacts of the DA Timber Sale along with, inter alia, the past timber sales.

Furthermore, the Court concludes that the FS failed to take a hard look at the cumulative effects of the DA Timber Sale and reasonably foreseeable future timber sales. As a preliminary matter, the Court acknowledges that, of the four future sales discussed in the wildlife specialists' reports - i.e., Croney Basin, Black Bear, Ball Mountain, and Foreman/Fish - only one appears to qualify as "reasonably foreseeable" because it is a proposed action - i.e., Black Bear. See Lands Council, 379 F.3d at 746 ("Our precedent defines 'reasonably foreseeable' in this context to include only 'proposed actions.'"). The Court notes that evidence establishing the status of these sales was only recently provided by the FS and does not appear to have been part of the administrative record. See Def.'s Supp. Br. at 5 & Ex. A. However, the Court shall consider the evidence since there has been no objection by EPIC.*fn7

According to EPIC, the FS failed to take a hard look under NEPA because, even though the agency did identify the Black Bear and other future sales, it did not know the number of acres to be harvested for each sale and it did know what silvicultural prescriptions were to be used for each sale. See AR 4478 (MIS Report; stating that, for future sales, "[a]cres of harvest and silvicultural treatments have not yet been determined for these projects").

The Court does not accept EPIC's position. The FS cannot be blamed simply because the number of acres to be harvested and the silvicultural prescriptions to be used had not been determined yet for the future sales. Notably, one of the regulations implementing NEPA recognizes that there are circumstances in which information is not complete or is not available to an agency. In such circumstances, the regulation directs that the agency "make clear that such information is lacking." 40 C.F.R. § 1502.22. While this regulation on its face applies to EISs and not EAs, it still provides some guidance to the Court as to whether an agency can be charged with having failed to take a hard look simply because information is incomplete or unavailable.*fn8

Although the Court does not accept EPIC's broader argument, it concludes that the FS did not consider all of the information it had about the one reasonably foreseeable future sale at issue (i.e., Black Bear). Ironically, this became clear when the FS submitted the declaration of Jesse Rosenquist for the Court's consideration at the summary judgment hearing. Based on the wildlife specialists' reports, it seemed that the only information the FS had about the future sale was information about its general location. See AR 4478 (MIS Report; noting that Black Bear sale was "located over 10 miles southeast" of DA).

The Rosenquist declaration, however, demonstrates that the FS knew more about the future sale than just its general location - in fact, that the agency had information about the tentative project boundary for Black Bear. See Rosenquist Decl., Ex. 3 (map). But nothing in the EA or wildlife specialists' reports shows that the FS considered the project boundary (and hence size) of the future sale in analyzing cumulative impacts. Nor was the boundary identified in any of the public documents attendant to the EA. This is especially problematic since, if the project boundary for the Black Bear sale was known - even if just tentatively - some assessment about the effect of the future sale could have been made based on, e.g., the amount of acreage affected, the stand conditions or riparian reserves within the project boundary, and the proximity to habitat of protected or sensitive species.*fn9

Thus, because the FS lacked information about the past timber sales and did not consider all of the information it had about the reasonably foreseeable future Black Bear sale, the Court holds that the agency failed to take a hard look at the cumulative impacts of the DA Timber Sale in conjunction with other sales.

As a final point, the Court notes that it is troubled by the cumulative impacts analysis of the FS because it is not clear that the agency necessarily looked at the "incremental impact of the action when added to other past, present, and reasonably foreseeable future actions" as required by the regulations implementing NEPA. 40 C.F.R. § 1508.7 (emphasis added). While the wildlife specialists' reports do discuss past, future, and proposed/existing timber sales, the reports discuss the categories of sales separately; that is, the reports do not clearly aggregate the various sales to determine their cumulative impacts. See, e.g., AR 4434-35 (Wildlife BA; addressing consecutively past sales, future sales, and then existing and proposed timber sales). Thus, there is an additional reason why NEPA was violated with respect to cumulative impacts.

b. Conclusory Cumulative Impacts Analysis

EPIC argues next that the FS failed to take a hard look at cumulative impacts because the cumulative impacts analysis that it did was overly conclusory. The Ninth Circuit has emphasized that a cumulative impacts analysis cannot be conclusory:

Consideration of cumulative impacts requires "some quantified or detailed information; . . . general statements about 'possible' effects and 'some risk' do not constitute a 'hard look' absent a justification regarding why more definitive information could not be provided." The cumulative impact analysis must be more than perfunctory; it must provide a "useful analysis of the cumulative impacts of past, present, and future projects."

Kern, 284 F.3d at 1075 (emphasis added). Usefulness is the key. See Muckleshoot, 177 F.3d at 810 (stating that an environmental analysis "must analyze the combined effects of the actions in sufficient detail to be 'useful to the decisionmaker in deciding whether, or how, to alter the program to lessen cumulative impacts.'"); Natural Res. Defense Council v. Hodel, 865 F.2d 288, 298 (D.C. Cir. 1988) ("Conclusory remarks [on cumulative impacts] . . . do not equip a decisionmaker to make an informed decision about alternative courses of action or a court to review the Secretary's reasoning.").

In the instant case, the Court concludes that the cumulative impacts analysis of the FS was conclusory. More specifically, the FS failed to provide a useful cumulative impacts analysis because, even though the agency repeatedly recognized that the DA Timber Sale and/or the other timber sales would fragment habitat for late-successional wildlife (in particular, the northern spotted owl), the agency summarily concluded, without any real explanation why, that the fragmentation was not a problem and that there would still be sufficient dispersal habitat after the sales. See Friends of the Earth, Inc. v. United States Army Corps of Eng'rs, 109 F. Supp. 2d 30, 42 (D.D.C. 2000) (noting that the Corps "dedicated nine or ten pages of each EA to cumulative impacts" but that "[t]here is no actual analysis" as the EAs "merely recite the history of development along the Mississippi coast and then conclude that the cumulative direct impacts 'have been minimal'"); see also Yolano-Donnelly Tenant Ass'n v. Cisneros, No. S-86-846 MLS PAN, 1996 U.S. Dist. LEXIS 22778, at *42-43 (E.D. Cal. Mar. 8, 1996) (criticizing EA because it was "full of conclusory language and provides virtually no factual support for its analyses and conclusions"; adding that "conclusory statements of reasons supporting HUD's finding is clearly at odds with NEPA's mandate"); cf. National Wildlife Fed'n v. National Marine Fisheries Serv., 235 F. Supp. 2d 1143, 1159-60 (W.D. Wash. 2002) (in Endangered Species Act case, stating that, "[d]ue to [the agency's] failure to explain [in its biological opinion] how dredging in the Snake River Fall Chinook's critical habitat will not adversely modify that habitat, its action appears to be arbitrary and capricious").

For example, in the EA, the FS admits that the DA Timber Sale and other sales will fragment habitat for mid- and late-successional wildlife by reducing suitable nesting, denning, and dispersal habitat for such wildlife; the agency also emphasizes that dispersal habitat between large LSRs and the 100 acre LSRs is "important to maintain." AR 4646 (EA). However, the FS then goes on to conclude - without any explanation why - that the DA Timber Sale and other sales would "still allow protected movement." AR 4646 (EA).

There are similar conclusory statements in the wildlife specialists' reports underlying the EA. In the Wildlife BA, for instance, the specialist acknowledges that the DA Timber Sale, by removing five acres of suitable nesting/roosting habitat and 154 acres of suitable foraging/dispersal habitat for the northern spotted owl, "could limit the availability of nesting sites, cause further fragmentation within the analysis area, and reduce the availability of dispersal habitat for juvenile young owls. Fragmentation would increase the probabilities of predation on spotted owls [as] [s]potted owl young and adults may come into contact with predators (great horned owls, goshawks, etc.) more often in fragmented environments." AR 4425 (Wildlife BA); see also AR 4428 (Wildlife BA; same). The specialist later states that the cumulative harvesting of existing and proposed timber sales will cause fragmentation of habitat for the northern spotted owl; that most matrix land will continue to be harvested such that it will not reach suitability as nesting habitat; and that, even though the Buttermilk LSR was considered fully functional in the most recent LSR Assessment, dispersal habitat between 100 acre LSRs and large LSRs is important to maintain and critical areas to maintain adequate dispersal habitat into the future will be between the Buttermilk LSR and YBME Wilderness. See, e.g., AR 4435 (Wildlife BA). After stating all of this, the specialist then concludes - without any explanation or analysis - that "[t]his area [between the LSR and Wilderness] would continue to provide dispersal habitat after implementation of this project." AR 4435 (Wildlife BA).

As another example, in the Wildlife BA, the specialist recognizes that the DA Timber Sale will impact at least some of the owl activity centers in the project area, for example, activity center 1008, which is located between the YBME Wilderness and Buttermilk LSR. Dispersal from this activity center takes place north to the Wilderness and south to the LSR. See AR 4426 (Wildlife BA). The home range for 1008 consists of only 835 acres, far less than the minimum 1,336 acres recommended by the FWS to support a pair of nesting owls. With the DA Timber Sale, 100 more acres of foraging/dispersal habitat would be removed from the home range. See AR 4424, 4426 (Wildlife BA). Given these circumstances, the specialist concedes that "harvesting would fragment habitat" but then concludes - without any explanation - that "suitable dispersal would still exist to allow protected movement." AR 4426 (Wildlife BA).

For further examples of conclusory statements in the wildlife specialists' reports, see AR 4434 (Wildlife BA; noting that future Croney Basin sale "could potentially affect" owl activity center 1052, also located directly between the YBME Wilderness and Buttermilk LSR, "if suitable habitat is removed" but then concluding - without providing any reasoning - that "[t]he addition of this sale should not effect dispersal between [the Buttermilk LSR] and Yolla Bolly Wilderness"); AR 4466 (MIS Report; noting that southern part of the project area has "small, isolated patches of suitable habitat" and that harvesting in one southern harvest unit will "remove foraging habitat within the largest contiguous block" but then concluding - without explanation - that "dispersal would not be inhibited"); AR 4467 (MIS Report; taking note that the DA Timber Sale will fragment foraging/dispersal habitat, including that between the Wilderness and LSR, but concluding - without explaining why - that "suitable habitat would still exist to allow protected movement" and that, "[a]lthough reduced, dispersal habitat would still exist").

At the hearing on the motions for summary judgment, the Court pressed the FS to explain the basis of its conclusion that fragmentation would not be a problem given the findings of risk identified in the EA and wildlife specialists' reports. Notably, the FS responded first by admitting that the analysis in the EA and reports "sounds conclusory" before arguing that its conclusion was based on field visits made by the specialists as well as quantitative data.

The FS's argument is not persuasive. Even though the specialists appeared to have made field visits to the project area, that does nothing to explain the substantive basis of their conclusion, e.g., that sufficient dispersal habitat would remain even after the DA Timber Sale and other sales. As for quantitative data, the MIS Report does reflect the size of the habitats for the northern spotted owl, goshawk, marten, and fisher in the project/analysis area. See AR 4466-67 (stating that, for southern part of project, "[s]potted owl and goshawk habitat is mostly divided into one large patch, approximately 280 acres in size, and two smaller patches approximately 135 acres each" and "[m]arten and fisher habitat is divided into one large patch of 250 acres in size, and two smaller patches approximately 70 and 140 acres, as well as smaller isolated patches"; for northern part, "[a]lthough convoluted, the mid to late successional habitat is spread throughout the project area and is fairly contiguous"). But the size of the habitats does little to explain again how sufficient dispersal habitat would remain after the DA Timber Sale, let alone the DA Timber Sale when taken in conjunction with other sales. For example, how did the FS or the specialists determine that removal of 59 and 100 acres respectively from the southern and northern portions of the project area was a negligible amount for purposes of dispersal? Cf. Marble Mountain Audubon Society v. Rice, 914 F.2d 179, 182 (9th Cir. 1990) (holding that FS failed to take a hard look at impact of timber sale on biological corridor; stating that "the FEIS concludes, without any apparent study or supporting documentation, that the preservation of a 1/2-mile wide strip bisecting the drainage will be sufficient to maintain the corridor"). The Court therefore finds the FS's cumulative impacts analysis was too conclusory. The conclusory analysis in the EA and wildlife specialists' reports fail to establish the hard look required of the agency in assessing cumulative impacts.

c. Effects of Roads

EPIC argues that the FS also failed to take a hard look at the cumulative impacts on latesuccessional wildlife and wildlife habitat because the EA and wildlife specialists' reports did not address the effects of roads as part of the cumulative impacts analysis. EPIC asserts that "road densities are of documented importance to the viability of late-successional wildlife," Pl.'s Opp'n at 4, and notes that, according to the Wildlife BE, current road densities are approximately five miles per square mile, which falls under low quality habitat for both the marten and fisher. See AR 4547, 4550 (Wildlife BE).

EPIC is correct that road densities are important to the viability of late-successional wildlife. The LSR Assessment, for example, notes that "[r]oad densities can affect habitat quality for many species, including marten, fisher, nesting owls, goshawks, and other species. Roads affect the quality of late successional habitat by increasing erosion, exposing animals to predation, and increasing noise disturbance." AR 3376 (LSR Assessment).

While the FS does not really dispute the significance of road densities, it still argues that it did not have to discuss the influence of roads as part of the cumulative impacts analysis because the DA Timber Sale will not involve any road construction, only road maintenance. See AR 4593 (EA); AR 4415 (Wildlife BA). Under the FS Handbook, road maintenance may be categorically excluded from documentation in an EA. See Forest Service Handbook 1909.15, at ยงยง 30.3(1), 31.1b (stating that "[r]epair and maintenance of roads, trails, and landline boundaries" may be categorically excluded); see also SAR 2 (road repair and maintenance proposal, dated 11-08-98; stating that project falls within category of actions for which no formal documentation required). "'Categorical exclusion' means a category of actions which do not individually or cumulatively have a significant ...


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