UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
September 3, 2008
PEOPLE OF THE STATE OF CALIFORNIA, EX REL. BILL LOCKYER, ATTORNEY GENERAL, PLAINTIFF,
UNITED STATES DEPARTMENT OF AGRICULTURE; MIKE JOHANNS, SECRETARY OF THE DEPARTMENT OF AGRICULTURE; MARK REY, UNDER SECRETARY OF THE DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE; DALE BOSWORTH, CHIEF, UNITED STATES FOREST SERVICE; AND BERNARD WEINGARDT, REGIONAL FORESTER, PACIFIC SOUTHWEST REGION, UNITED STATES FOREST SERVICE, DEFENDANTS. AND TUOLUMNE COUNTY ALLIANCE FOR RESOURCES & ENVIRONMENT, ET AL.; CALIFORNIA SKI INDUSTRY ASS'N; QUINCY LIBRARY GROUP, ET AL.; AND CALIFORNIA CATTLEMEN'S ASS'N, DEFENDANTS-INTERVENORS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
AMENDED MEMORANDUM AND ORDER*fn1
Through this lawsuit, Plaintiff Bill Lockyer, on behalf of the People of the State of California (hereinafter "Plaintiff") challenges the 2004 Sierra Nevada Forest Plan Amendment ("SNFPA"), commonly known as the 2004 Framework. Defendants are sued in their official capacities as representatives of the United States Forest Service. ("Forest Service") Plaintiff contends that the 2004 Framework runs counter to the provisions of both the Administrative Procedures Act ("APA") and the National Environmental Policy Act of 1969 ("NEPA"). Presently before the Court are cross motions for summary judgment filed on behalf of both the Plaintiff and Defendants.
The Sierra Nevada contains some 11.5 million acres of National Forest Service land with eleven National Forests and encompasses "dozens of complex ecosystems each with numerous, inter-connected social, economic and ecological components." SNFPA 1920. In the late 1980s, the Forest Service began developing a comprehensive strategy for managing the myriad resources found within the region. In 1995, the Regional Forester for the Pacific Southwest Region of the Forest Service issued a draft Environmental Impact Statement ("EIS") outlining its management proposal. SNFPA 229.
After extensive public participation and the preparation of a Final EIS ("FEIS") responding to public concerns, the Regional Forester issued, in 2001, a Record of Decision ("ROD") which adopted management objectives in five major areas: old forest ecosystems; aquatic, riparian, and meadow ecosystems; fire and fuels; noxious weeds; and hardwood ecosystems on the lower westside of the Sierras. Id. at 231-35.
Among the thorniest issues confronted by the ROD was striking the appropriate balance between balancing the excessive fuel buildups occasioned by decades of fire repression and conserving key habitat for wildlife species dependent on old forest environments. The 2001 ROD included a network of "old forest emphasis areas" across about 40 percent of all national forest land in the Sierra Nevada that was designed to provide a contiguous network of old forest ecosystems conducive to species preferring such habitat like the California Spotted Owl, the American Marten and the Pacific Fisher. SNFPA 236. Aside from other areas slated for specific treatment (like a limited "urban wildland intermix" designed to create a buffer between developed areas and the forest), the 2001 Framework specified a "general forest" land allocation intended to increase the density of large old trees and the continuity and distribution of old forests across the landscape. SNFPA 236-37.
In order to protect old forest conditions within its specific areas of emphasis, the 2001 Framework generally prohibited logging that would remove trees over 12 inches in diameter or logging that would reduce canopy cover by more than 10 percent. SNFPA 328.
Even within the "general forest" areas, the 2001 Framework prohibited logging of trees over 20 inches in diameter. SNFPA 336. It was only within the intermix zones that no canopy restrictions were imposed and logging of trees up to 30 inches was permitted. SNFPA 333, 315.
Although the Forest Service ultimately affirmed adoption of the 2001 ROD despite receipt of approximately 200 administrative appeals, it nonetheless directed the Regional Forester to conduct an additional review with respect to specific concerns like wildfire risk and the Forest Service's responsibilities under the Herger-Feinstein Quincy Library Group Forest Recovery Act ("HFQLG Act"), a congressional mandate which established a Pilot Program for fire suppression through a combination of fire breaks, group selection logging and individual logging. SNFPA 1918. A management review team was assembled by the Regional Forester for this purpose.
In March 2003, the team concluded that the 2001 ROD's "cautious approach" to active fuels management had limited its effectiveness in many treatment areas. The management review team further found that revisions to vegetation management rules would decrease flammable fuels while protecting critical wildlife habitat by guarding against the risk of stand-replacing wildfire. See SNFPA 1918, 1926.
Moreover, with respect to the California Spotted Owl ("CASPO" or "owl"), the team felt that the 2001 ROD had unnecessarily "took a worst case approach to estimating effects" on the owl. SNFPA 1968.*fn2 In addition to citing recent research indicating that habitat losses resulting from fuel treatments were less than previously believed, the team further found that the 2001 ROD's extensive reliance on maintaining extensive canopy cover was impracticable to implement.
Following receipt of the team's findings, the Regional Forester ordered that management strategy alternatives in addition to those considered in the 2001 FEIS be considered. A draft supplemental environmental impact statement ("DSEIS") was thereafter released to the public in January 2004. While the same five areas of concern were targeted in the DSEIS as in its 2001 predecessor, in 2004 a new action alternative was identified (Alternative S2), in addition to the alternative selected by the 2001 Framework (Alternative S1) and the seven alternatives that had previously been considered before adoption of the 2001 Framework (Alternatives F2-F8).*fn3
Following the public comment period after dissemination of the DSEIS, the SEIS in final form also included response to various issues raised, including comments by the United States Fish and Wildlife Service, by the United States Environmental Protection Agency, by California resources protection agencies, and by the Science Consistency Review ("SCR") team.*fn4
By adopting the SEIS on January 21, 2004, the Regional Forester replaced the 2001 ROD with its 2004 successor and amended the forest plans for all eleven national forests situated in the Sierra Nevada. SNFPA 2987-3061. The 2004 ROD reasoned that the 2001 Framework "prescribed technical solutions that do not produce needed results, or offered methods we often dare not attempt in the current Sierra Nevada." SNFPA 2995. The 2004 Framework reasoned that the methods as adopted in 2001 fail to reverse the damage, and growing threat, of catastrophic fires quickly enough. Id.
The Chief of the Forestry Service ultimately affirmed the 2004 ROD,*fn5 with the direction that details of the ROD's adaptive management be submitted to him within six months. SNFPA 3997-4305. The Regional Forester submitted that supplemental information to the Chief on March 31, 2005.
Through the present lawsuit, Plaintiffs allege that the 2004 Framework as ultimately adopted runs afoul of both the APA and NEPA on a programmatic basis. Specifically, Plaintiff contends that the 2004 Framework violates the APA because it failed to include a reasoned analysis for changing the approach advocated by its predecessor, the 2001 Framework. Moreover, Plaintiffs also argue that the 2004 Framework runs afoul of NEPA because it was adopted without either adequate disclosure of its significant environmental impacts or consideration of reasonable alternatives to the selected approach.
Congress enacted NEPA in 1969 to protect the environment by requiring certain procedural safeguards before an agency takes action affecting the environment. The NEPA process is designed to "ensure that the agency ... will have detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger [public] audience." Blue Mountains Biodiversity Project v. Blackwood, 171 F.3d 1208, 121 (9th Cir. 1998). The purpose of NEPA is to "ensure a process, not to ensure any result." Id. "NEPA emphasizes the importance of coherent and comprehensive up-front environmental analysis to ensure informed decision-making to the end that the agency will not act on incomplete information, only to regret its decision after is it too late to correct." Center for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir. 2003).
Complete analysis under NEPA also assures that the public has sufficient information to challenge the agency's decision. Robertson v. Methow Valley Citizens, 490 U.S. 332, 349 (1989); Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1151 (9th Cir. 1998).
NEPA requires that all federal agencies, including the Forest Service, prepare a "detailed statement" that discusses the environmental ramifications, and alternatives, to all "major Federal Actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(c). An agency must take a "hard look" at the consequences, environmental impacts, and adverse environmental effects of a proposed action within an environmental impact statement ("EIS"), when required. Kleppe v. Sierra Club, 427 U.S. 390, 410, n.21 (1976).
NEPA does not mandate that an EIS be based on a particular scientific methodology, nor does it require a reviewing court to weigh conflicting scientific data. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985).
An agency must be permitted discretion in relying on the reasonable opinions of its own qualified experts, even if the court might find contrary views more persuasive. See, e.g., Kleppe, 427 U.S. at 420, n. 21. NEPA does not allow an agency to rely on the conclusions and opinions of its staff, however, without providing both supporting analysis and data. Idaho Sporting Cong., 137 F.3d at 1150. Credible scientific evidence that contraindicates a proposed action must be evaluated and disclosed. 40 C.F.R. § 1502.9(b).
Because NEPA itself contains no provisions allowing a private right of action (see Lujan v. National Wildlife Federation, 497 U.S. 871, 882 (1990)), a party can obtain judicial review of alleged violations of NEPA only under the waiver of sovereign immunity contained within the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Earth Island Institute v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2005).
Under the APA, the court must determine whether, based on a review of the agency's administrative record, agency action was "arbitrary and capricious," outside the scope of the agency's statutory authority, or otherwise not in accordance with the law. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir. 1994). Review under the APA is "searching and careful." Ocean Advocates, 361 F.3d at 1118. However, the court may not substitute its own judgment for that of the agency. Id. (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).
In reviewing an agency's actions, then, the standard to be employed is decidedly deferential to the agency's expertise. Salmon River, 32 F.3d at 1356. Although the scope of review for agency action is accordingly limited, such action is not unimpeachable. The reviewing court must determine whether there is a rational connection between the facts and resulting judgment so as to support the agency's determination.
Baltimore Gas and Elec. v. NRDC, 462 U.S. 87, 105-06 (1983), citing Bowman Trans. Inc. v. Arkansas-Best Freight Sys. Inc., 419 U.S. 281, 285-86 (1974). An agency's review is arbitrary and capricious if it fails to consider important aspects of the issues before it, if it supports its decisions with explanations contrary to the evidence, or if its decision is either inherently implausible or contrary to governing law. The Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir. 2005).
Summary judgment is an appropriate procedure in reviewing agency decisions under the dictates of the APA. See, e.g., Northwest Motorcycle Assn. v. U.S. Dept. Of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). Under Federal Rule of Civil Procedure 56, summary judgment may accordingly be had where, viewing the evidence and the inferences arising therefrom in favor of the non-movant, there are no genuine issues of material fact in dispute." Id. at 1472. In cases involving agency action, however, the court's task "is not to resolve contested facts questions which may exist in the underlying administrative record", but rather to determine whether the agency decision was arbitrary and capricious as defined by the APA and discussed above. Gilbert Equipment Co., Inc. v. Higgins, 709 F. Supp. 1071, 1077 (S.D. Ala. 1989); aff'd, Gilbert Equipment Co. Inc. v. Higgins, 894 F.2d 412 (11th Cir. 1990); see also Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985).
Consequently, in reviewing an agency decision, the court must be "searching and careful" in ensuring that the agency has taken a "hard look" at the environmental consequences of its proposed action. Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846, 858-59 (9th Cir. 2005); Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997).
According to Defendants, Plaintiff has failed to demonstrate the requisite standing for proceeding with this lawsuit because he has submitted no evidence that the State of California's natural resources will be impacted. Defendants correctly point out that determining whether an adequate "case or controversy" exists between litigating parties is a critical threshold inquiry in every federal case. Warth v. Seldin, 422 U.S. 490, 498 (1975). Vital in satisfying the case or controversy requirement is the doctrine of standing which requires a plaintiff to have suffered a "concrete and particularized" injury which is "actual or imminent" rather than "conjectural or hypothetical," and can be fairly traced to the actions of a defendant. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Despite Defendants' contentions to the contrary, however, the detailed allegations of Plaintiff's Complaint herein are in and of themselves sufficient to confer standing in this matter. To establish Article III standing based on alleged procedural injuries like those guaranteed by NEPA and the APA, a plaintiff need only show 1) that defendants violated certain procedural rules; 2) that the rules existed to protect plaintiff's concrete interests; and 3) that it is reasonably probable that the challenged action threatens those concrete interests. City of Sausalito v. O'Neill, 386 F.3d 1186, 1197 (9th Cir. 2004); see also Citizens for Better Forestry v. U.S. Dept. Of Ag., 341 F.3d 961, 969-70 (9th Cir. 2003).
In City of Sausalito, the Ninth Circuit found standing on the part of Sausalito to sue the National Park Service under NEPA. The court held that the City's "concrete interests" included "proprietary interests" that are "as varied as a municipality's responsibilities, powers, and assets." Id. at 1197. Such interests included the City's interest in protecting its ability to enforce its land use and health regulations and in preventing effects to its natural resources, its city-owned land, and its "aesthetic appeal." Id. at 1198-99. The court determined that it was reasonably probable that the project proposed by the Park Service threatened Sausalito's concrete interests, through the possibility of "a detrimental increase in traffic and crowds...., affecting city-owned streets as well as municipal management and public safety functions." Id.
The Ninth Circuit also identified an "aesthetic injury" due to congestion that "will destroy the City's quiet, beauty, serenity and quaint and historic village character and attributes"; and "injury to Sausalito's natural resources" due to an increase in noise and trash, degraded air quality, and harm to the marina, parks and shoreline. Id.; see also City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975).
The considerations weighed and deemed sufficient to confer standing in City of Sausalito apply with equal force in this case. Plaintiff is authorized by law to protect its varied interests from harm, interests which reflect the State of California's own unique responsibilities, powers and assets. By operation of law and a factual matter, California owns, and holds in trust for its population, all wildlife, water, state-owned land, and public trust lands in and around the Sierra Nevada.
See, e.g., Betchart v. Cal. Dept. of Fish and Game, 158 Cal. App. 3d 1104, 1106-07 (1984) (wildlife); Cal. Water Code § 102 (water). To the extent Plaintiff has identified violations of APA and NEPA bearing upon such resources, it is reasonably probable that such violations will threaten California's concrete, proprietary interests.
California may sue under the APA and NEPA because it falls within the APA's broad definition of a "person... adversely affected or aggrieved by agency action." 5 U.S.C. § 702; see also 5 U.S.C. § 551(2). The Attorney General is also authorized, under common law, to file any civil action directly involving the rights and interests of the state in the absence of any legislative restriction.
D'Amico v. Board of Medical Examiners, 11 Cal. 3d 1, 14-14 (1974); People v. Birch Sec. Co., 86 Cal. App. 2d 703, 707 (1948); People v. Stratton, 25 Cal. 242, 248 (1864); see also Cal. Govt. Code §§ 12511, 12512.
Moreover, in approving the 2004 Framework and upholding it on administrative appeal, the Forest Service has made a final administrative determination that is subject to review under the APA. 5 U.S.C. § 702. The procedural injuries alleged by California clearly fall within the zone of interests that the APA and NEPA are designed to protect because the Attorney General brings this action to protect the environment and natural resources of this state. Defendants' challenge to Plaintiff's lawsuit on standing grounds consequently fails.
II. CLAIMS UNDER THE APA THAT DEFENDANTS FAILED TO PROVIDE THE FRAMEWORK REQUISITE "REASONED ANALYSIS" FOR ADOPTION OF THE 2004
Plaintiff's independent APA challenge (as set forth in the First Cause of Action) is predicated on the contention that the Forest Service summarily rejected the 2001 Framework without identifying any sufficient new information or changed circumstances and without reconciling its abrupt change of course with previous findings to the effect that permitting more flexibility for fuel treatments in old-growth forests posed an unacceptable risk to the long-term sustainability of the Sierra Nevada's habitat, wildlife, and ecosystems.
In response to Plaintiff's claim that the Bush Administration promptly jettisoned the 2001 Framework developed by the prior administration after assuming office, Defendants correctly point out that "a change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs and regulations." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in part and dissenting in part). In National Cable & Tel. Ass'n v. Brand X Internet Servs. ("Brand X"), 545 U.S. 967 (2005), the Supreme Court again reiterated that a new administration may lawfully elect to modify its predecessor's policies:
"An initial agency interpretation is not instantly carved in stone. On the contrary, the agency.... must consider varying interpretations and the wisdom of its policy on a continuing basis, [citation omitted], for example, in response to changed factual circumstances or a change in administration...
Id. at 981 (internal quotations and citations omitted); see also Gorbach v. Reno, 179 F.3d 1111, 1123-24 & n.16 (6th Cir. 1999) (federal agencies have "inherent authority to reconsider their own decisions," as the power to decide includes the power to reach a different conclusion).
Nonetheless, to the extent that the 2004 Framework represented a significant departure from the policies embodied by its 2001 predecessor, the rationale for that change must be adequately articulated. As long as the agency provides a procedural explanation for the change of course, the APA is satisfied.
Brand X, 545 U.S. at 981; Springfield Inc. v. Buckles, 292 F.3d 813, 819 (D.C. Cir. 2002). An agency changing its course must "supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance." See Motor Vehicle Mfrs. Assoc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 42. "[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the decision made." Id. at 43. The standard of review to be employed is not whether an agency's decision is supported by substantial evidence; instead, the Court must uphold a decision for which an administrative hearing is not required unless it is arbitrary or capricious because the requisite reasoned analysis is lacking. See 5 U.S.C. § 706(2)(A); Wilderness Soc'y v. Thomas, 188 F.3d 1130, 1136 (9th Cir. 1999).
In analyzing the propriety of the 2004 Amendment, it should also be noted that claims under the APA must be viewed in light of the substantive statutory authority under which the agency acts. The National Forest Management Act ("NFMA"), which establishes criteria for stewardship of the nation's forests, allows the Forest Service to adopt an amendment to a forest plan at any time. 16 U.S.C. § 1604(f)(4). Significantly, too, the NFMA goes on to require that the Forest Service "provide for multiple use and sustained yield" of products and services, including "coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1).
In striking the appropriate balance of resources the Forest Service is also expected to "provide for diversity of plant and animal communities (1604(g)(3)(B), and to maintain viable populations of species. See 36 C.F.R 219.19 (1982); SNFPA 3011. The case law confirms that forest planning statutes incorporate considerations of multiple use. Sierra Club v. Espy, 38 F.3d 792, 795 (5th Cir. 1994).
The burden is on Plaintiff to demonstrate that the Forest Service's action is flawed; otherwise, the agency's action is given a presumption of regularity. See Clyde K. v. Puyallup School Dist., No. 3, 35 F.3d 1396, 1398 (9th Cir. 1994). This confers broad discretion to the Forest Service in its balancing of different resource uses, including timber and wildlife. Such discretion permits the Forest Service to determine the mix of uses that best suits the public interest. See 16 U.S.C. § 529 (directing Secretary of Agriculture to administer the National Forest Service for multiple uses and sustained yield); Perkins v. Bergland, 608 F.2d 803, 806 (9th Cir. 1979) (the mandate to manage for multiple uses "'breathe[s] discretion at every pore.'" (citation omitted); Intermtn. Forest Ass'n v. Lyng, 683 F. Supp. 1330, 1337-38 (D. Wyo. 1988).
Discretion in managing for multiple use is reflected in pertinent forest management statutes and is also incorporated into the forest planning. Where the factual issue concerns an opinion or judgment on some environmental or silvicultural matter, on such a "scientific determination.... a reviewing court must generally be at its most deferential."
Baltimore Gas & Elec. Co. v. Natural Resources Def. Council, 462 U.S. 87, 103 (1983). An "agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh v. Oregon, 490 U.S. 360, 378 (1989).
Having determined that considerations of multiple use may be reweighed by the Forest Service, we now turn to specific resource considerations in assessing whether the Forest Service provided the requisite "reasoned analysis" in adopting the provisions of the 2004 Framework.
A. Fire and Fuels Management
Contrary to Plaintiff's contention, the record does contain support for the Forest Service's conclusion that the 2004 Framework would better address fire and fuels concerns than its predecessor. The Management Review Team (assembled by the Regional Forester to address specific concerns raised by the Forest Service following adoption of the 2001 Framework) evaluated the fuels strategy encompassed in the 2001 Framework and identified three critical areas meriting improvement. SNFPA 3100-3101. First, the Team identified the need for fuel treatments to be strategically placed across the landscape. Secondly, the group recommended that enough material be removed to ensure that wildfires burn at lower intensities and slower speeds in treatment areas.
Finally, the Management Review Team recognized the need for cost efficient reduction measures that would allow program goals to be accomplished within the confines of appropriated funds. Id.
The 2004 Framework, in response to those suggestions, provides more flexibility to strategically locate treatments across the landscape. SNFPA 3290, 3291. Because the 2004 Framework does not restrict the location of mechanical treatments as much as the 2001 ROD, fire behavior can more effectively be modified than under the 2001 Framework, which dramatically limited such treatments in many areas. See SNFPA 2995; 3290, 3291 (comparing rate of spread, flame length, scorch height, and projected mortality). The 2004 Framework also results in the removal of more hazardous fuels, making mechanical treatment more effective. See SNFPA 3290 (noting that the effectiveness of mechanical treatments under the 2001 ROD was "greatly compromise[d]" by the fact that 30 percent of the acreage treatment was limited to removing trees less than six inches in diameter). Finally, the increased cost efficiency of the 2004 Framework is illustrated by the fact that while its more comprehensive treatment objectives would be higher and cost more to implement, it would also generate 3.5 times more revenue annually to offset the higher costs necessary to more effectively reduce fire risk to the landscape. See SNFPA 3293-94. The fact that the 2004 Framework addressed the concerns voiced by the Management Review Team with regard to its 2001 predecessor provides a reasoned basis for changing the Forest Service's approach to fire and fuels management, thereby satisfying the APA.
In addition, it was reasonable for the Forest Service to choose a treatment option that, after a decade of implementation, would result in fewer acres experiencing stand-replacing*fn6 wildfires. See SNFPA 3287, 3288. Significantly, too, the management review team also identified numerous practical difficulties in implementing the 2001 Framework in any event. It identified difficulties in classifying vegetation at the small (one-acre increment) scale required by the 2001 ROD that made it subject to inconsistent classification. See SNFPA 1947, 3290-01, 3612. It further found that the 2001 Framework relied upon relatively small discrepancies in canopy cover that were difficult to consistently measure with any precision. SNFPA 1946-48. Importantly, also, more than 80 percent of district rangers responding to a survey reported that 2001 Framework standards and guidelines prevented effective treatment. SNFPA 1928, see also SNFPA 2995.
It must further be emphasized that there is adequate support in the record for the proposition that the 2004 Framework would better meet the Forest Service's goal of moving forest landscapes towards a natural fire regime which, in the long run, would result in more effective fuels treatment. See SNFPA 3287, 3288 (Table 4.2.4a, Figure 4.2.4b).
The Sierra Nevada faces a situation where nearly 8 million of the 11.5 million acres that comprise national forests in the region are in vegetation condition classes that pose moderate to high risks from wildland fires. SNFPA 2998.*fn7 The proliferation of smaller, less fire-resistant tree species (which under natural conditions had kept in check by widespread, low severity fires) has created a highly-combustible fuel bed, as well as a fire ladder serving to carry ground fire into the crowns of larger trees. Given that potential tinderbox, it was reasonable for the Forest Service to explore and adopt measures to more effectively address fire danger by reducing the understory of smaller and less desirable vegetation. The 2004 Framework points out that the magnitude of this increasing danger has been borne out by devastating fires throughout the Western United States in recent years that has occasioned an "unacceptable loss of life, property and critical habitat" calling out for a more effective alteration of current forest conditions. Id.
Given such conditions, it was understandable that the current Administration felt less comfortable with the 2001 approach of fighting "fire with fire", which relied more heavily on prescribed burning to reduce overly-dense forests with the hope those fires did not get out of control.
This constituted a rational basis for moving, as the 2004 Framework did, to greater reliance on mechanical methods for thinning overly dense forests. SNFPA 2995.
At the same time, much of the increased fuel treatments entailed within the 2004 Framework were attributable to full implementation of the HFQLG Act Pilot Project, which, as stated above, represented a congressional mandate to test the efficacy of improved fires suppression through a combination of fire breaks, group selection logging and individual logging. SNFPA 1918. The Management Review Team found that the 2001 ROD "severely limit[ed]" implementation of the HFQLG Pilot Project, as it did not allow the full extent of group selection envisioned by the HFQLG Act. SNFPA 1967, 1970. Experimentation with such techniques is a valuable tool in refining adaptive management techniques, whereas the 2001 Framework's more passive approach reduced the ability to experiment and obtain information. See SNFPA 3001-02, 3139-43. Such experimentation is anticipated by the provisions of the NFMA (16 U.S.C. § 1604(g)(3)(C), and the management review team concluded that a new direction could more thoroughly test group selection and better fulfill the goals of the HFQLG Act. SNFPA 1967, 1970; see also SNFPA 3002.
In addition to finding that the impacts to the owl occasioned by full implementation of the Pilot Project were less than originally believed (as discussed in more detail, infra), the Team also found that the community stability goals of the HFQLG Act were not being met. See SNFPA 1967, 1968 (a "key component" of the Pilot Project is to "provide socio-economic benefit through timber and biomass production, and therefore enhance community stability in the project area."); SNFPA 1969, 1970 (the community stability, and socio-economic aspects of the Pilot Project are not being implemented"); SNFPA 3001. See SNFPA 3386, 3697 ("Alternative S2 is designed to better meet the goals envisioned by the Pilot Project and will contribute toward producing socio-economic benefits of enhancing community stability in the pilot project area."). Timber production is a legitimate objective in national forest management and is one of the competing resources the Forest Service is responsible for managing.
Finally, while Plaintiff appears to argue that Defendants should not be permitted to fund forest management through timber revenue as opposed to congressional appropriation, the Forest Service appropriately counters that it seeks to maximize, rather than replace, the dollars it receives through such appropriation. See SNFPA 3100 (increasing the economic value of wood byproducts would improve the ability to "treat the desired acreage of hazardous fuels with available appropriated dollars"); SNFPA 3583, 3584 (2004 Framework would allow treatments to "generate revenues through commercial forest products to increase the number of acres that can be treated with the available appropriated funds").
Because the record contains adequate support for the conclusion that the 2004 Framework would more effectively reduce landscape fuels, would better protect communities from the risk of catastrophic wildfire, and would further permit fulfillment of the legitimate objectives of the congressionally mandated HFQLG Act, the change in resource use and emphasis represented by the 2004 Framework's provisions concerning fuels and fire managements well within the agency's statutory discretion and consequently do not run afoul of the provisions of the APA. By revisiting the unnecessary assumptions of the 2001 Framework and by better providing for community stability, the Forest Service decided upon a different resource balance that would address both the needs of wildlife and the duty under the HFQLG Act to fully implement the Pilot Project. See SNFPA 3338-39, 3608-09.
B. Effects Upon the California Spotted Owl
Paramount in the assumptions underlying the 2001 Framework was the belief that owls would be negatively affected by more intensive forest management practices and by full implementation of the HFQLG Act. Plaintiff argues that no new information on impacts to the owl justified any increase in fuel treatment and timber harvesting in the old forest habitat preferred by the owl. Absent the "reasoned analysis" of such new information, Plaintiff asserts that implementation of the 2004 Framework is arbitrary and capricious, thereby contravening the APA.
The state's position in this regard appears unwarranted. The Management Review Team appointed by the Regional Forester reassessed the owl analysis relied upon by the 2001 Framework and determined that a new evaluation was warranted. The Team found that the 2001 ROD inappropriately relied upon the analysis of the HFQLG biological assessment/biological evaluation ("BA/BE"), which "took a worst case approach to estimating effects" on the owl and was unnecessarily conservative. SNFPA 1968. The Team also concluded that "the assessment of owl home range condition in the 2001 EIS is not consistent with the research findings upon which it is based and may not be representative of the current status of owl habitat." SNFPA 1951.
This assessment was borne out by the findings contained in a so-called "meta-analysis"*fn8 prepared by a team of sixteen scientists organized by the Forest Service's Pacific Southwest Region Station. The results of that analysis, which used data gathered from five owl demographic studies to assess population status and trends, were published in 2003 and included a new approach in estimating the rate of change in owl populations. SNFPA 3213. Those results suggested that the rate of owl population decline was not as great as originally predicted in the 2001 EIS. SNFPA 3214. In fact, the meta-analysis shows evidence of one apparently stable population, and the other owl populations assessed failed to exhibit any statistically significant difference from that stable population. See SNFPA 1949.
The meta-analysis was just one of numerous pieces of new information considered in the SEIS. See SNFPA 3213-3218 (listing other new information and analyses for owls, including recent wildfires in protected activity centers ("PACs") and drought related mortality); SNFPA 3608 (new information on owl demographics "did not drive the development of new management direction but was used to inform the decision-maker of the effects of implementing the new proposal"). Additionally, the Management Review Team acknowledged that "because of the considerable uncertainty about the knowledge of owl demographics, it "does not believe or suggest that this new information will eliminate concern for the status and trend in owl population[s]" SNFPA 1950, 3214, 3607, 3608, 3340. Instead, the Team acknowledged that all available science indicates that owl habitat "must be carefully managed." SNFPA 1950. It did not assume that owl populations were actually increasing (SNFPA 0266), and it acknowledged that reproductive success in any given year cannot be used to indicate overall population trends due to periodic breeding pulses. SNFPA 3214.
Given new conclusions reached by the meta-analysis and the recognition by the Team that the owl still merits protection (the 2004 Framework's "hard look" at its effects upon the owl will be more extensively considered later in this Court's discussion of the NEPA violations identified by Plaintiff), we cannot say the 2004 Framework's new management direction towards the owl was arbitrary and capricious.
It is also important to consider that, in the long run, the 2004 Framework estimates that its implementation will reduce by some 22 percent the number of acres burned each year by wildland fire, an event which causes "[l]oss and degradation of habitat, creation of habitat gaps, and lengthy time period for habitat reestablishment." SNFPA 3347. Moreover, in the short run, immediate effects to owl habitat have been demonstrated by several large, recent wildfires. SNFPA 3215. Given the observed loss to owl PACs and other habitat areas, it was reasonable for the 2004 SEIS to have concluded that owl "habitat would benefit" from the decreased risk of stand-replacing fire under the 2004 Framework. SNFPA 3349; see SNFPA 3287, 3288 (showing reductions in wildland fire under 2004 Framework); SNFPA 3348 (a "potential subsequent decreased loss of spotted owl habitat to wildfire is expected" under the 2004 Framework).
The Court believes that the 2004 Framework was motivated by a fundamental exercise of the agency's discretion to strike a different multiple use balance which, while still protective of owls, places a greater emphasis on more effective reduction of hazardous fuels so as to decrease the risk of stand-replacing wildfire. See SNFPA 2995, 3626; see also Native Ecosystems Council v. Forest Serv., 428 F.3d 1233 (9th Cir. 2005) ("The long-term benefit of preventing stand-replacing fires, which completely destroy goshawk habitat, is preferable over any short-term benefit the goshawks might receive from retaining the dense forest structure in the project area.... Consequently, we uphold the agency action under the APA's arbitrary and capricious standard."); Northwest Motorcycle Ass'n v. Dep't of Agric., 18 F.3d 1468, 1479 (9th Cir. 1994) (Forest Service's "desire to provide a proper balance of trail opportunities between motorized and non-motorized users and to reduce 'user conflict'" was reasoned basis for closure to off-road vehicles). In advocating a new management direction for the owl, the Forest Service's action was not devoid of any reasoned analysis so as to violate the provisions of the APA.
C. Grazing Impacts
In enacting changes to grazing opportunities available under the 2004 Framework, Plaintiff also argues that no changed circumstances were present to justify any change from the grazing direction mandated by the 2001 Framework. According to Plaintiff, the Forest Service was aware at the time it enacted the 2001 Framework that it was reducing opportunities for grazing on national forest lands. In changing the standards for permissible grazing under the 2004 Framework, Plaintiff contends that absent altered circumstances and a corresponding "reasoned analysis", the Forest Service's actions contravened the mandate of the APA. Specifically, in comparing the effects of the 2004 and 2001 Frameworks, Plaintiff focuses on the justification for grazing restrictions posed by adverse impacts on the willow flycatcher and the Yosemite toad, two species dependent on the kind of habitat where grazing occurs.
The 2004 Framework makes it clear, however, that the full impact upon grazing of the 2001 Framework was not made clear until after its enactment. The 2004 SEIS points out that grazing effects were considered only "in very general terms" in 2001, with information at that time still lacking about the distribution of occupied habitat for species like the Yosemite toad. SNFPA 3392. Critical survey information for the willow flycatcher was also absent. Id. That dearth of information had been corrected by the time the 2004 Framework was adopted. See id. ("Much of the field survey work has since been done and this new information provides a better foundation from which to evaluate effects.").
After collecting additional survey data, the Management Review Team found that at least two grazing allotments would go to non-use based on a restriction to late season grazing at unoccupied sites. SEIS __01_00063-65.*fn9 The Team also found that the 2001 ROD actually provided a disincentive for grazing permitees to facilitate species recovery. Grazing permittees, for example, had worked with the Forest Service to develop protections for nesting willow flycatchers in certain areas with concentrated flycatcher territories. Those affirmative protections had ceased with adoption of the 2001 Framework with only a passive meadow closure and non-use mandates in effect.
Under the 2004 Framework, on the other hand, change was initiated that improved the ability to develop site-specific plans tailored to address conservation at a local level while still permitting grazing. While 2004 ROD still requires surveys and protections for occupied sites, it permits grazing on occupied sites where the Agency has developed a site-specific management strategy. SNFPA 3048. That strategy focuses on "protecting the nest site and associated habitat during the breeding season and the long-term sustainability of suitable habitat at breeding sites." Id. This comports with the Review Team's observation that impacts from grazing (such as flycatcher nest bumping) could be addressed by working with permittees to adjust the timing, location, and intensity of grazing to keep livestock out of willow flycatcher territories during the bird's breeding period. SEIS_01_00067.
Similarly, for the toad, the 2004 Framework excludes grazing from occupied habitat except where an interdisciplinary team has developed a site-specific plan to successfully manage livestock around those areas. SNFPA 3001.
The 2004 Framework candidly acknowledges that over half of the 124 known willow flycatcher sites are in or near active grazing allotments, making contact between livestock and flycatchers likely. SNFPA 3221. The 2004 Framework further recognizes data suggesting that population trends for the willow flycatcher in the north-central Sierra Nevada are not encouraging. SNFPA 3322.
Nonetheless, by allowing site-specific plans that permit grazing during periods not apt to significantly impact either the flycatcher or the toad, and thereby increasing the use of certain allotments, the Forest Service's actions are neither arbitrary or capricious for purposes of the APA. This decision to strike a different multiple use balancing between habitat protection and grazing is supported by the record, and amounts to a reasonable exercise of the Forest Service's discretion, as articulated above, to emphasize a different mix of the resources it is entrusted to manage.
In addition, with regard to grazing, it must be pointed out that the 2004 Framework does not eliminate environmental protections. The Framework retains numerous components of the 2001 ROD that are important to the protection of riparian and aquatic habitat. See SNFPA 3000 (2004 ROD retains "Critical Aquatic Refuges, the Riparian Conservation Areas, and the goals of the Aquatic Management Strategy ["AMS"]"). The 2004 ROD also built upon two years of field surveys for the Yosemite toad and willow flycatcher, as well as a conservation assessment for the flycatcher, by requiring an interagency conservation strategy for the flycatcher that will incorporate input from the State of California and the United States Fish and Wildlife Service ("FWS"). Id.
In sum, whether looking at the 2004 Framework's treatment of fuels and fire, its protection to wildlife, or the balance struck between competing interests like grazing and community protection, the Forest Service had the policy discretion to change the Framework to provide more or less emphasis to any given resource or interest, so long as essential protections were afforded. In managing forests, every decision involves tradeoffs among competing use values and the competing interests of different species. Sierra Club v. Espy, 38 F.3d 792, 800-02 (5th Cir. 1994). The policy values the Forest Service emphasized to a greater extent in the 2004 Framework were not arbitrary or capricious so as to violate the APA. Those policy choices are within the Forest Service's "wide discretion to weigh and decide proper" multiple uses under the NFMA and the MUSYA. Big Hole Ranchers Ass'n v. U.S. Forest Serv., 686 F. Supp. 256, 264 (D. Mont. 1988).
III. REQUIRED "HARD LOOK" PRIOR TO ADOPTING THE 2004 FRAMEWORK CLAIMS UNDER NEPA THAT THE FOREST SERVICE FAILED TO TAKE THE
The remainder of Plaintiff's claims as set forth in the First Amended Complaint are predicated on violations of NEPA despite the fact that they also invoke the APA, given the fact that as a procedural matter alleged violations of the APA must be made within the waiver of sovereign immunity contained within the APA. Earth Island, 351 F.3d at 1300.
As indicated above, NEPA only requires that federal agencies like the Forest Service establish a consistent process for considering environmental impacts, and take a "hard look" at the consequences of such impacts. Vermont Yankee Nuclear Power v. NRDC, 435 U.S. 519, 558 (1978). So long as "the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs." Id.
While NEPA requires an evaluation of environmental effects, it imposes no substantive constraints on the Agency's decision making. Methow Valley, 490 U.S. at 350; Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir. 1994) NEPA "does not dictate a substantive environmental result"). NEPA even presumes that agencies will have a preferred action, requiring only that impacts be evaluated objectively and in good faith. See 40 C.F.R. § 1502.14(3) (requiring identification of agency's preferred alternative); Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2001) ("NEPA assumes as inevitable an institutional bias within an agency proposing a project....").
Judicial review under NEPA cannot extend to the substantive need for, or desirability of, a particular policy like increased protection against wildfires or heightened protection for wildlife. See Mobil Oil Expl. & Prod. Southeast, Inc. v. United Dist. Cos., 498 U.S. 211, 230-31 (1991); Vermont Yankee Nucl. Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 541-48 (1978); Personal Watercraft Ass'n v. Dept. of Commerce, 48 F.3d 540, 544-56 (D.C. Cir. 1995).
The Constitution reserves such policy decisions for assessment and determination by the Executive and Legislative branches of government.
Here, Plaintiff nonetheless asserts that the Forest Service violated the procedural protections afforded by NEPA by unreasonably highlighting and quantifying reductions in wildfire and increased economic benefits to timber and grazing interests but failing to address in a similar fashion the risk of irreparable harm to the diversity and viability of unique species and the long-term sustainability of their associated ecosystems. Plaintiff claims that Defendants have accordingly not taken the requisite "hard look" at the consequences of their proposed action. The State further asserts that the Forest Service failed to disclose and substantively address the pointed and detailed criticisms lodged by virtually every expert resource agency and scientific working group. Finally, the State claims that by failing to consider a reasonable range of alternatives to implementation of the 2004 Framework, the Forest Service also violated NEPA. We turn now to each of the alleged shortcomings identified by Plaintiff as constituting NEPA violations.
A. Timber Harvesting
Pointing to the fact that timber harvesting under the 2004 Framework is projected to increase some 4.7 fold over projected 2001 levels in the first decade, largely because of the slated full implementation of the HFQLG Act (SNFPA 3389 (Table 4.4.1b)), Plaintiff argues that the Forest Service has not attempted to state with any degree of confidence that in the short-term, the level of fuel treatment contemplated by the 2004 Framework would not adversely affect old forest habitats. According to Plaintiff, the 2004 Framework contains only very general discussions of the potential adverse impacts caused by timber harvesting under the 2004 Framework.
The Forest Service, on the other hand, claims that the potential effects from logging activities are considered throughout the Framework documentation for individual resources. See, e.g., SNFPA 3271, 3272-75 (forest vegetation); 3280-84 (aquatic resources); 3289-91, 3296-97 (fire and fuels); 3298 (noxious weeds). On a more fundamental level, however, the Forest Service correctly points out that the 2004 Framework as a programmatic document does not authorize any actual timber harvest; rather, it establishes only the standards and guidelines under which future projects that authorize harvest would occur. See Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726 (1998); SNFPA 3014 (amended plans "do not provide final authorization for any activity").
Future site-specific authorization of actual timber harvest would have to comply with NEPA, where effects would be analyzed in more detail according to site-specific factors. See SNFPA 3010, 3690, 4019.
California's attempt to target the specifics of the 2004 Framework's approach to timber management suffers, then, from the fundamental error that the 2004 Framework does not commit to timber harvesting at specific locations and with particular environmental constraints. Such subjects will be addressed in later site-specific NEPA documents before timber harvesting can be commenced. NEPA does not require the extensive detail the state advocates in the 2004 Framework, as a programmatic first level SEIS.
Even California agrees that the same level of analysis appropriate to a site-specific plan does not apply to the 2004 Framework. (Pl.'s Opp. to Defs.' Mot., 17:14-15). The 2004 Framework only establishes the standards and guidelines under which future projects that authorize harvest would occur. With regard to some resources, The effects of timber harvest are simply too site-specific to be meaningfully analyzed at the regional scale of the 2004 Framework. Impacts stemming from the delivery of coarse woody debris ("CWD") to streams following logging, for example, which is important for stabilizing stream channels and furnishing cover for fish, "is difficult at the bioregional scale due to the extreme variability in the condition of [riparian conservation areas] and the relative importance of CWD in maintaining stream channel structure and function." SNFPA 3282.
Such effects are more meaningfully evaluated in landscape and project-level analyses using individual watershed and site-specific parameters such as "stream width, tree heights, distances from streams, slope steepness", and other factors. Id. In addition, hydrological effects from timber harvesting are subject to further evaluation and appropriate mitigation on a future project basis. SNFPA 328.
Importantly, the 2004 Framework itself recognizes that where timber harvesting effects are too variable or site-specific to lend themselves to detailed, quantitative analysis at the bioregional scale, individual effects are nonetheless subject to scrutiny on a project-by-project basis. See SNFPA 3010, 3690, 4019 (noting that future decisions to authorize timber harvest would have to comply with NEPA).
With respect to the volume of timber harvest contemplated under the 2004 Framework, as indicated above much of the planned increase stemmed in the short-term from full implementation of the HFQLG Act Pilot Project. SNFPA 03387. Despite Plaintiff's contention to the contrary, the 2004 SEIS does address the impacts of increased timber thinning and harvesting under the QLG Pilot Project on old forest ecosystems, and on fire and fuels and forest health. See SNFPA 3166-3178, 3264-3392. Moreover, in wishing to fully enact the Pilot Project, the Forest Service had two main objectives: 1) to obtain information on the effects of small-area group harvesting of trees on species and fire frequencies for purposes of providing better data on adaptive management than was available under the 2001 Framework (see SNFPA 3139-3143); and 2) to provide American forest products for American consumers, as well as to continue viable timber employment and needed tax base to affected communities. See SNFPA 3001-02, 3101; see also SNFPA 3121, 3131-34, 3166-78, 3264-3392.
Also critical in assessing the propriety of fully enacting the Pilot Project is the fact that the HFQLG Act, which authorized the Project, was congressionally mandated. The Forest Service was required by statute to conduct the Pilot Project. See 16 U.S.C. §2104 note, sec. 401(b). Importantly, too, the Forest Service already prepared a programmatic EIS in August 1999 specifically for the Pilot Project, as well as a supplemental programmatic EIS which was published in July 2003 in response to a court order. SNFPA 986. The 2004 SEIS represents yet another programmatic EIS that addresses standards and guidelines for the Pilot Project.
The 2004 SEIS nonetheless contains an adequate discussion of the effects of full implementation of the Project. See SNFPA 3131-34 (description of management direction); 3177 (effects to roads); 3267-68 (old forest connectivity); 3268-69 (old forest desired conditions); 3270-71 (forest density/composition); 3275, 3276 (reforestation/regeneration); 3280, 3281, 3282 (aquatic ecosystems); 3289, 3290, 3291, 3292, 3294, 3295 (fire and fuels); 3307 (red-legged frog); 3338-39, 3342 3361 (willow flycatcher); 3364 (great gray owl); 3373 (Yosemite toad "does not occur within ghe HFQLG Pilot Project Area.").
Plaintiff's argument that potential impacts have not been evaluated is misplaced. The prior Pilot Project EIS covers much of the ground that Plaintiff would like to see re-analyzed in the SEIS. See SNFPA 3609 ("The environmental effects of the Pilot Project were originally evaluated and analyzed in the HFQLG FEIS"); SNFPA 3361 ("The effects of implementing the [Scientific Analysis Team ("SAT")] guidelines have been analyzed and discussed in the HFQLG FEIS and biological evaluation, and the effects of implementing the SAT guidelines in lieu of the AMS have been evaluated and discussed in the SNFPA FEIS and biological evaluation."). As the Forest Service points out, NEPA is not an exercise in generating paperwork, but rather is aimed at producing meaningful analysis. See 40 CFR 1500.4, 1500.1(c), 1502.1. It was therefore reasonable for the SEIS to include an analysis only of new standards and guidelines pertaining to the Pilot Project and not a full-blown re-evaluation as Plaintiff advocates.
Significantly, too, the SEIS adequately reconciles its prior conclusion in the Pilot Project BA/BE that full implementation might threaten owl viability. See SNFPA 3338-39, 3608-09; see also SNFPA 1968. As already mentioned above and as further discussed in the next section of this Memorandum and Order, the prior owl viability analysis was reviewed and found to have unnecessarily taken a "worst case approach to estimating effects" on the owl, while the actual implementation was believed to encompass more modest impacts. SNFPA 1968; see SNFPA 3338, 3609.
In sum, because the 2004 Framework's discussion of impacts from timber harvesting is both adequate for purposes of a programmatic documents and sufficient for purposes of addressing implementation of the HFQLG Act Pilot Project under the circumstances, the requirements of NEPA have been satisfied.
B. Effects to Wildlife Species
As indicated above, Plaintiff's lawsuit challenging the 2004 Framework, to the extent it focuses on wildlife allegedly impacted by implementation of the Framework, analyzes such impacts on three particular species: the California spotted owl, the willow flycatcher and the Yosemite toad. Having already analyzed whether there was any "reasoned analysis" supporting the difference between the protections afforded the species under the 2004 as opposed to the 2001 Framework, we now look to whether, for purposes of compliance with NEPA, the 2004 Framework took the requisite "hard look" at impacts to the three species.
1. California Spotted Owl
In analyzing whether the Forest Service was deficient in analyzing impacts to the owl, a species preferring old-growth forest conditions, it is important to initially consider the extent to which the 2004 Framework is expected to impact old-growth habitat. The record discloses that any such effect appears minimal. No treatments under the Framework are projected for some 86 percent of Old Forest Emphasis Area ("OFEA").
SNFPA 3332. Treatment in Protected Activity Centers ("PACs"), which, as indicated above, comprise 300-acre parcels around each known owl nest or roosting site, are very limited throughout the Framework area*fn10 and virtually nonexistent in the HFQLG area where most of the logging is scheduled to take place. SNFPA 2997; 3121-3122; 3336. Moreover, no treatment of any kind will occur within 80 percent of the 1,000 acre Home Range Core Areas ("HRCAs") set aside in conjunction with each PAC, and to the limited extent such treatments occur they are permitted only outside a 500-acre radius surrounding the PAC. Id., see also SNFPA 3334. Even outside of HRCAs and PACs, the more intensive vegetation treatments under the 2004 Framework are likely to reduce canopy cover to 40 percent on only 8 percent of acres treated currently at 50 percent canopy cover or greater. SNFPA 3344. Treated areas will retain landscape features recognized as being important to old-forest dependent species, like larger trees (in excess of 30 inches in diameter), snags, and 40 percent plus canopy. SNFPA 2995; 2997; 3341.
Finally, in comparing the 2001 and 2004 Frameworks, there is a negligible difference in the short run between 2001 and 2004 Frameworks as to the available acres of late seral stage forest, with an overall increase in the long term (60 plus years). SNFPA 3327.
On the basis of the quantified habitat impact disclosed by the 2004 Framework, then, the effect of the 2004 Framework on old-forest species like the owl appears negligible. Plaintiffs nonetheless claim that the short-term effects upon the owl have not adequately been disclosed for purposes of NEPA.
Any consideration of the effects of vegetation treatments in the Sierra Nevada necessarily involves a difficult balancing act between the short-term risk that some old-growth species may be displaced by any habitat disturbance, and the longer term risk that without reducing forest density through thinning and logging operations, stand-replacing wildfires may eliminate suitable habitat in its entirety. The 2004 Framework specifically recognizes that it is a very difficult task to find the best way to protect old forest dependant species and to increase and perpetuate old forest ecosystems, while at the same time addressing the desperate need for forest intervention to reduce the risk of fuel loads feeding catastrophic fires. SNFPA 2995. A thinning program to reduce the risk of catastrophic wildfire will reduce the likelihood of stand-replacing fires in old growth areas in the future. SNFPA 2995, 3083; 3266, 3336.
Significantly, as the 2004 Framework also recognizes, recent fire seasons illustrate the risks from inaction as the number and severity of acres burned in wildfires continues to increase, with tragic losses to communities, their people and resources, as well as to wildland firefighters. Moreover, to the extent that forests are overstocked and drought conditions are present, an overall lack of sufficient moisture makes forest drier and not only more susceptible to fire but also prone to insect and disease damage. SNFPA 2996. The Forest Service has the unenviable task of attempting to simultaneously weigh these significant competing considerations with the risks, both long and short-term, to old-forest species like the owl, fisher and marten.
Despite Plaintiffs' claim that the 2004 Framework fails to provide enough analysis of its likely impacts to wildlife, especially in short run, the SEIS does recognize the importance of addressing short-term impacts. The importance of consideration short-term impacts on the owl is specifically recognized. See SNFPA 3327, 3337 ("With regard to owl population persistence, the short-term effects of management activities are believed to be most relevant.... and are highlighted in this effects analysis."), see also SNFPA 3339-3345. The 2004 Framework additionally recognizes that logging treatments "over the short-term (20 years) may introduce some unknown level of risk to the California spotted owl population." SNFPA 3340.
The 2004 Framework nonetheless attempts to mitigate that risk, while at the same time meeting not only the long term objective of long-term habitat preservation through the reduced risk of stand-replacing fire, but also the other multi-use considerations enumerated above. Although uncertainty remains concerning rangewide population trends, there is no definitive evidence that overall owl populations are decreasing across the Sierra Nevada. SNFPA 3214.*fn11 The 2003 meta-analysis conducted by spotted owl biologists, which includes the only demographic studies of owl population trends, survival and reproduction over the previous 7 to 12 years, recommends adaptive management experiments to evaluate the effects on the owl of silvicultural treatments designed to reduce fire risk. SNFPA 3152. Adaptive management strategies are "intended to improve scientific knowledge regarding the fire and fuels strategy as well as habitat relationships and vegetation management effects on California spotted owls." SNFPA 3608. Adaptive management encourages scientific scrutiny so that elements of the plan can be adjusted to "better balance management of the California spotted owl with management for other resources and activities. Id.
The 2004 Framework does adopt adaptive management strategies, which permit the Forest Service to respond to any short-term impacts as they are ascertained. The California Spotted Owl Response Module, for example, is designed to provide information on treatment effects at both the individual site and population level scales in addressing numerous issues, including population density, trends, habitat suitability, reproduction and survival using radio telemetry and sampling techniques. SNFPA 3155. The 2004 Framework indicates that funds have been provided to execute a total of five modules that comprise this integrated research project, which significantly includes examination of effects not only to the owl but also on small mammal habitat associations (like the Pacific fisher and American marten) and vegetation response to fuel treatments in general. Id.
In addition to using adaptive management strategies as a way of managing short-term impacts, the 2004 Framework also utilizes modeling projections to aid in a thorough assessment of such impacts. Modeling results prior to year 20 were disclosed. See SNFPA 3287, 3288, 3327. Also, a comparative analysis was conducted on late-seral stage forest in the short-term, including years 0 through 20. SNFPA 3326-3327. Through such projections, the Forest Service predicted that the amount of old forest is projected to increase across the bioregion in the short-term, "despite treatments in approximately 14 percent of old forest emphasis areas." SNFPA 2996, 3602.
In the long term, reliance upon modeling is a sound methodology deserving deference. See Salmon River, 32 F.3d at 1359 (courts should not resolve disagreements among scientists as to methodology). Long term projections are "fundamental to forestry science." SNFPA 3337. The models for the SEIS are "state-of-the-art" updated versions of those used in the Northwest Forest Plan and "every other national forest plan in the Region." Id. (Models are "based on thousands of measured trees, are grounded in forestry science and are uniquely developed to cover the major forested areas around the country"). The SEIS also fully disclosed the models' assumptions. See SNFPA 3461-3480. Plaintiff cannot show that long-term modeling is an unreasonable methodology. See Salmon River, 32 F.3d at 1359; Nevada Land Action Ass'n v. Forest Serv., 8 F.3d 713, 718 (approving use of models in forest planning). Significantly, the Ninth Circuit recently reaffirmed that modeling is a legitimate projection tool where supported by a reasonable scientific basis. See Lands Council v. McNair, 2008 WL 2640001 at *8 (9th Cir. 2008).
While the Forest Service's use of modeling projections to predict both short and long term impacts is criticized by Plaintiffs as unreliable, in fact the 2004 Framework includes an appendix that discloses potential errors in modeling projections. SNFPA 3649-50.
Importantly, the Forest Service acknowledged uncertainty in whether owl populations are in fact stable (see SNFPA 3213-3214) by adopting guidelines still protective to the owl-- retaining large live conifers, retaining 40 percent of basal area of largest trees in mature forest outside defense zones, providing large-snag retention guidelines, and minimizing impacts to owl PACs. SNFPA 3040-41, 3041-42, 3049-51.
The Forest Service's decision to proceed forward with vegetation management even in the face of some short-term uncertainty as to owl impacts also must be viewed in conjunction of the very real short-term risk occasioned by habitat loss due to wildfire. According to the 2004 Framework, an annual average of 2.5 PACS a year have been lost or severely modified by wildfire since 1998. SNFPA 3336, 3349. Over the last four years, however, the annual loss has increased to 4.5 PACS. Id. Immediate effects to owl habitat have been documented for several large wildfires (Buck, Storrie, Manter, McNally, Star, and Gap) between 1998 and 2002. SNFPA 3215. Although the magnitude of the full effects to owl habitat will not be understood for many years, most of these fires "did lead to total or partial loss of PACs," based upon the extent of mortality of mature conifers immediately following the fire. Id. Under the 2004 Framework, not only would there be fewer acres burned by wildfire, but "a reduction in the fraction of wildfire acreage (forested) that is lethally burned" is also projected. SNFPA 3287-88. The mechanical thinning planned under the 2004 Framework is expected to reduce rate at which habitat within PACs and SOHAs is lost to wildfire. SNFPA 3336, 3349.
The 2004 Framework also addresses specific areas of concern identified by owl scientists as representing potential areas where future problems would be greatest if owl's status in Sierra Nevada were to deteriorate. SNFPA 3341. Despite the cumulative benefits of reducing devastating wildfire as discussed above, the 2004 Framework nonetheless recognizes that the management prescriptions adopted by the 2004 Framework do risk the reduction of owls and owl habitat in some areas of concern. SNFPA 3342. This also constitutes a recognition of short-term impacts.
Significantly, too, in terms of short-term impact, the record also contains Lee and Irwin's article on assessing risks to spotted owls from forest thinning, which recognizes that "modest fuels treatments are compatible with territory-level canopy cover needs for spotted owl reproduction in the Sierra Nevada." See SNFPA 2654.
Additionally, in terms of acreage, over the last 30 years wildfire in the Sierra Nevada has burned an average of about 43,000 acres per year, whereas in the last ten years, that average has risen to about 63,000 acres per year. SNFPA 3083. Projections comparing the anticipated effects of the 2001 Framework versus its 2004 successor show a decrease from 63,000 acres to 60,000 during the first decade. That figure decreases to 49,000 acres in the fifth decade, with implementation of the 2004 Framework estimated as accounting for a 22 percent decrease in the acreage lost due to wildfire as opposed to only 2 percent with the 2001 version. Id.
To the extent that the hypothesized trend of increasingly large, high severity wildfires is correct, the rate of loss of PACs would be expected to mirror this increase. That suggests a severe short-term risk.
According to the 2004 Framework, any short-term decreases in certain owl habitat are counterbalanced by longer term cumulative increases in all suitable habitat types. SNFPA 3336. Moreover, because of the risk of negatively affected CASPOs in the short-term by mechanical treatments, the line officers are directed to proceed with extreme caution when proposing and vegetation management within PACs and to attempt to avoid such treatment wherever possible. SNFPA 3350.
Additionally, examination of the Framework shows that more emphasis of short-term effects was added to the FEIS in response to public comments. As the Forest Service stated, "the FEIS discusses short-term impacts of the Alternatives on CASPOs and considered the tradeoffs of treatments to protect and enhance long-term sustainability of resources, species viability, and impacts on multiple resources. It is the responsibility of the Responsible Official to weigh this information and select the alternative that best balances risk, uncertainty, effects to resources, and public welfare and safety." SNFPA 3517. The SEIS recognizes that there is continuing scientific uncertainty regarding habitat relationships and population trends of the California spotted owls. The SEIS also recognizes that there is considerable concern for the long-term habitat loss and fragmentation caused by large high severity wildfires." SNFPA 3606.
In sum, Plaintiffs' arguments that the SEIS does not adequately consider short-term effects upon old forest species like the owl reflect a desire to see a level of detail that is not expected for a programmatic EIS, and a level of certainty that is not required by NEPA. The Ninth Circuit's decision in Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th Cir. 2004), relied upon by Plaintiff, involved a project decision, not a programmatic decision, which requires less detailed analysis. See Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1357-58 (9th Cir. 1994).*fn12 Moreover, while Plaintiff urges the Court to overturn the 2004 Framework with respect to the protections it affords to the owl, Plaintiff's argument is premised on a substantive "risk-benefit" analysis that cannot be squared with the procedural safeguards mandated by NEPA. Defendants are entitled to judgment in their favor to the extent that Plaintiff's complaint alleges that the 2004 Framework failed to adequately consider its direct and indirect impacts to old-forest species like the owl.
2. Willow Flycatcher
With regard to the willow flycatcher, the main difference between the 2001 and 2004 Frameworks with the fact that under the 2004 Framework, managers at grazing sites occupied by the flycatcher have the option either to restrict grazing to late season, or to allow grazing year-round under a site-specific management plan. SNFPA 3359. The SEIS carefully explains that only about ten percent of nesting attempts for flycatcher occur after August 15th, the date for commencement of late season grazing, often because of unusually wet weather conditions. Id. The 2004 Framework contemplates that should such late nesting be identified, the date when livestock are allowed onto grazing allotments would likely be delayed, thereby "moderating the risk" of nest disturbance. Id. The SEIS further requires a site specific plan to protect flycatcher habitat during the breeding season and to maintain long-term habitat suitability for the bird.
In taking issue with this approach, Plaintiff points to the findings of the Willow Flycatcher Working Group ("WFWG"), a panel comprised of experts on the ecology of the flycatcher that periodically discuss the status of the species in the Sierra and devise strategies for its recovery. The WFWG felt that implementation of the 2004 Framework carried a high probability of promoting a continued decline in the abundance of the willow flycatcher population (see SEIS_02_01969). In addition, the California Department of Fish and Game expressed similar sentiments. SNFPA 3903.
Given these findings, Plaintiff argues that the magnitude of the risk to the flycatcher has not been adequately discussed. Plaintiff further argues that because the 2004 Framework focuses only on currently occupied nesting sites (whereas its predecessor also included sites that had been used in the past even if no continuing activity was detected), actions to specifically restore flycatcher habitat would less likely be taken. SNFPA 3358.
Despite these protestations, the change with regard to management of the willow flycatcher in the 2004 Framework appears modest. Permitting local flexibility in permitting grazing, so long as willow habitat remains protected and active nesting areas are excluded, is not suspect under NEPA. Instead, as a programmatic document, the 2004 Framework properly mandates that site-specific management plans protect flycatcher habitat during the breeding season. If local conditions permit grazing to occur while safeguarding such protections, grazing may properly occur. If, on the other hand, the site-specific plan improperly allows grazing that impinges on willow flycatcher viability, that is an issue to be taken up at the site-specific level and not as part of a NEPA challenge to the procedural measures taken in the 2004 Framework as a whole.
3. Yosemite Toad
Like the flycatcher, Yosemite toad habitat may also be affected by grazing in forest meadow areas. Moreover, also like the flycatcher, the 2001 Framework required a blanket exclusion of livestock from all occupied toad sites during the breeding and rearing season. Also akin to the flycatcher is the fact that the changes pertaining to management of the toad between the 2004 Framework and its 2001 predecessor are minimal. For toads, the 2004 Framework affords local managers flexibility in allowing grazing pursuant to "site-specific management plans" that would be charged with ensuring management of livestock movement around wet areas suitable for toad habitat. SNFPA 3372. Significantly, the 2004 Framework requires that any such plans permitting grazing include "annual systematic monitoring of habitat conditions, toad occupancy, and population dynamics at sampling sites." Id. The 2004 Framework specifically defers management direction of grazing to the "project level" (Id.), and the Court believes that this is equally permissible under NEPA as for both the Yosemite toad and the willow flycatcher, as discussed above.
Significantly, too, the 2004 Framework did not avoid discussion of problematic factors affecting toad management, like the fact that because of difficulty in herding and fencing livestock in high elevation meadows, grazing and movement will take place in some portion of toad breeding and rearing areas if livestock are allowed in adjacent areas. SNFPA 3372. The Framework also acknowledges that little information exists about the effects of land management activities on the Yosemite toad.
SNFPA 3371. It further summarizes the risk of trampling of some egg masses and tadpoles, as well as the vulnerability of toad metamorphs due to slow movement, with the highest threat in that regard occurring between July and October. SNFPA 3372-73. Indirect effects are also disclosed, including the modification of breeding and rearing pool structural features from livestock hooves, reduced cover from trampling and matting of vegetation, and potentially delayed metamorphosis and small metamorphs as a result of contamination of pools by livestock. Id.
Given its recognition of risks as well as its direction that local flexibility in permitting grazing be annually monitored for both toad occupancy and habitat conditions, the Court concludes that the 2004 Framework took the requisite "hard look" at effects upon the Yosemite toad.
Failure to Adequately Consider Opposing Scientific and Acknowledge Scientific Uncertainty
Plaintiff argues that the Forest Service failed to properly consider concerns voiced by various state and federal resource agencies and expert groups, including the United States Fish and Wildlife Service, California state resource agencies and owl and willow flycatcher scientists, to the 2004 Framework. According to Plaintiff, the Forest Service did not adequately disclose the extent of controversy in the text of the 2004 Framework. formulating the 2004 Framework, and identify that alleged shortcoming as yet another violation of NEPA.
With respect to the owl, Plaintiff claims that the Forest Service did not address the substance of concerns raised by owl biologist Dr. Jared Verner and others. The record shows, however, that Regional Forester Jack Blackwell conducted extensive meetings with the owl scientists relied upon by Plaintiffs in order to listen to their concerns. SNFPA 2432. Blackwell was informed at those meetings that owl distribution and density in the Sierra Nevada had been stable for the last ten years with no decline (SNFPA 2433) and that owl population "will never exhibit large increases because it is already at carrying capacity." SNFPA 2439. Nonetheless, in response to concerns voiced concerning the 2004 Framework, Blackwell wanted to ensure that the Framework was scientifically credible and accordingly asked that a Scientific Consistency Review ("SCR") be undertaken by an independent team of scientists to ensure the scientific credibility of the Framework. The results of the SCR were used by the interdisciplinary team preparing the 2004 Framework in order to improve its environmental analysis and acknowledge scientific uncertainty and differing points of view. SNFPA 2578-89; 2590-2601; 3002. Blackwell adopted the SCR's recommendation that adaptive management be employed and noted that the Forest Service has a long history of investing in monitoring data and research activities, like the California spotted owl demographic studies conducted for the past 15-20 years. SNFPA 3002.
In addition to engaging in the SCR process and conducting agency meetings with scientists as discussed above, examination of the 2004 Framework also shows that it looked at the demographic data on the owl collected and described in the 2003 Meta-Analysis (SNFPA 2086, 2089) and that published research was divulged and assessed (SNFPA 2638-57). The SEIS specifically recognized scientific controversy regarding the owl*fn13, but at the same time acknowledged concern for long-term habitat loss and fragmentation caused by large high severity wildfires. 3606. All this points to a conclusion that the Forest Service took a hard look at impacts to the California spotted owl as required by NEPA.
Contrary to Plaintiffs' contention, contrary scientific opinion was disclosed. The 2004 Framework specifically recognizes owl biologist Jared Verner's 1992 conclusion that given spotted owl preferences for old growth features like significant canopy cover, large trees and snags, any activities that would degrade or remove any of these habitat attributes are believed to pose some level of risk to owl occupancy and production. SNFPA 3335. The 2004 Framework goes on to acknowledge uncertainty as to whether benefits of treating PACs to reduce their susceptibility to wildfire will outweigh the potential negative effects of the treatments on owl occupancy and habitat quality.
Id.*fn14 In addition, it explicitly recognizes conflicting science about the effects on the spotted owl of canopy cover reduction caused by fuel treatments, like Hunsaker's 2002 study showing that owl productivity negatively correlated with a canopy cover less than 50 percent. SNFPA 3337. The 2004 Framework goes on to compare this analysis with a contrasting 2003 Lee and Irwin article which found that concerns about proposed fuel treatments having a negative effect on owls were not supported by either their analysis or other published information. SNFPA 3340.
While the Forest Service recognizes Lee and Irwin's research finding that lethal fire simulations produced a pronounced and lasting negative effect on the owl (SNFPA 2639), as indicated above it also concludes that the pace and intensity of mechanical thinning planned under the alternative chosen by the 2004 Framework is expected to reduce the rate at which habitat within PACs and SOHAs is lost to wildfire. SNFPA 3336.
In addition to disclosing the existence of opposing owl science in citations contained within the SEIS, the Forest Service also addressed scientific controversy in its responses to numerous public comments engendered by the DSEIS. See SNFPA 3600-3616.
The 2004 Framework recognizes that there is continuing scientific uncertainty regarding habitat relationships and population trends of the California spotted owls. Scientific uncertainty regarding the owl are discussed throughout the SEIS. See, e.g., SNFPA 3143-48. Despite Plaintiff's contention to the contrary, scientific uncertainty about the effect of proposed fuel treatments on old-forest species, including the owl, is disclosed throughout the SEIS with specific literature references. See, e.g., SNFPA 3313, 3314, 3315 (including literature citations for research on the Pacific fisher); SNFPA 3337 (citing Self and Kerns, 2001 Kucera, 2000, Spencer, 1981, SNFPA 3325)) for the American marten); SNFPA 3337, 3340, 3342 (citations for the owl).
With regard to the willow flycatcher, Plaintiff's contention that the SEIS did not address comments by the flycatcher scientists also appears misplaced. The Willow Flycatcher Working Group ("WFWG") made three main recommendations in response to the proposed 2004 Framework. First, it advocated completion of a conservation strategy within 6-9 months. Secondly, it recommended implementation of a monitoring and demographic study, and finally it advocated removal of livestock from occupied meadows on a year-round basis. SEIS_02_001969-1970. The Forest Service in fact adopted a variant of the first recommendation. See SNFPA 3620 ("a conservation strategy for the willow flycatcher would be completed by May 2005"). Moreover, the second recommendation for a demographic study had already been addressed in an existing conservation assessment. Id.; see also SNFPA 3359 (agency "will continue to direct study of the demographics of the willow flycatcher...."); SNFPA 3978 (showing prioritization of demographic study). Lastly, the effects of year-round grazing were adequately analyzed in the SEIS. See SNFPA 3359.
The SEIS also responded to internal comments from WFWG staff. The SEIS, for example, acknowledged the uncertainty related to short-term effects upon the owl, toad, and flycatcher, and discussed in detail the proposed studies that would attempt to address the gaps in scientific knowledge. See SNFPA 3144-46, 3149-50. Moreover, in response to concerns about long-term modeling, the SEIS included additional disclosure of the assumptions and limitations of such modeling. See SNFPA 3461-80.*fn15 Accordingly, the SEIS responded to opposing viewpoints in a manner sufficient for purposes of satisfying the requirements of NEPA.
In addition to disclosing scientific uncertainty and opposing viewpoints through the SEIS, its response to public comments,*fn16 and the SCR, the Forest Service also acknowledged scientific uncertainty in its ROD for the 2004 Framework. SNFPA 3002 (explaining that the SCR was used to improve the SEIS and to "acknowledge scientific uncertainty and differing points of view").
Scientific uncertainty is also addressed at some length in the Scientific Consistency Review requested by the Forest Service, which included analysis of 1) whether applicable and available scientific information had been considered; 2) whether scientific information had been interpreted reasonably and accurately; 3) whether uncertainties associated with the scientific information had been acknowledged; and 4) whether risks and uncertainties had been identified and documented. SNFPA 3504, 3526; see also SNFPA 2356, 3503-24 (explaining how SEIS was improved based on SCR).
The Forest Service refined its analysis and discussion of the spotted owl based on the SRC team's commentary. See SNFPA 2578-2589; 2590-2601. The Forest Service stated that "[m]ore emphases and discussion on short-term effects and associated risk [to the California spotted owl] was added to the SEIS and is considered in the Adaptive Management Process." SNFPA 2601.
In sum, after carefully examining the record, the Court determines that the 2004 Framework was adequately considered contradictory opinions through its acknowledgment of scientific controversy and uncertainty concerning potential impacts of the treatment proposals. That consideration including references to applicable literature in the SEIS, the SCR, and the ROD all prepared in conjunction with the Framework. The requirements of NEPA are consequently satisfied. See Seattle Audubon Soc'y v. Lyons, 871 F. Supp. 1291, 1321 (W.D. Wash. 1994) (The agency having engaged in numerous studies and analyses on the owl satisfied NEPA's requirement to take a "hard look" at available data).
The fact that an agency's approach has been critiqued, or that alternative methodologies have been disclosed, does not render an EIS arbitrary. See Edwardsen v. U.S. Dept. Of Interior, 268 F.3d 781, 786 (9th Cir. 2001). It is well recognized that "disagreement among the experts is inevitable when the issues are at the 'very frontiers of scientific knowledge,' and such disagreement does not preclude [courts] from finding that the [agency's] decisions are adequately supported by evidence in the record." Lead Indus. Ass'n, Inc. v. EPA, 647 F.2d 1130, 1160 (D.C. Cir. 1980). So long as contrary opinion is adequately disclosed, an agency "is under no obligation to conduct new studies in response to issues raised in the comments, nor is it duty-bound to resolve conflicts raised by opposing viewpoints." See California v. Block, 690 F.2d 753, 773 (9th Cir. 1982).
Additionally, the existence of uncertainty does not preclude the agency from taking action, so long as that uncertainty has been identified. See Village of False Pass v. Clark, 733 F.2d 605, 614 (9th Cir. 1984), citing Sierra Club v. Sigler, 695 F.2d 963, 970 (5th Cir. 1983) ("the unavailability of information,.... should not be permitted to halt all government action... This is particularly true when information may become available at a later time and can still be used to influence the agency's decision."). Moreover, just because Plaintiff may disagree with the Forest Service's impact assessment does not mean that the court can "substitute its judgment for that of the agency as to the environmental consequences of its actions." Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976).
Instead, because its Framework adequately disclosed and addressed competing scientific viewpoints, the Forest Service's decision merits deference, and Plaintiff's NEPA challenge must accordingly be rejected. See Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1301 (9th Cir. 2003) ("[An] agency is entitled to wide discretion in assessing the scientific evidence, so long as it takes a hard look at the issues and responds to reasonable opposing viewpoints.").
Based on the foregoing, the Court concludes that the 2004 Framework satisfactorily addressed, for purposes of complying with NEPA, both scientific opposition and uncertainty with regard to its treatment proposals.
D. Adaptive Management
The use of adaptive management is adequately explained in the SEIS, and the Forest Service reasonably has applied it to the 2004 Framework. SNFPA 3136. Adaptive management "policies and decisions are not viewed as final solutions but as hypotheses and opportunities for continued learning." SNFPA 3137. The monitoring and research initiatives of adaptive management provide data that can be reviewed and used to inform subsequent management decisions. SNFPA 3141. While Plaintiff objects to the scientific utility of adaptive management under the circumstances of this case, the Ninth Circuit's recent McNair decision makes it clear that choosing between and validating scientific methodologies is "not a proper role" for a federal court. Lands Council v. McNair, 2008 WL 2640001 at *4.
Moreover, contrary to Plaintiff's assertion, the SEIS does include discussion on funding for monitoring and surveying. A detailed discussion on funding for the adaptive management monitoring and surveying is present in the record, and lists high priority studies such as the California spotted owl canopy reduction study. SNFPA 3983-86. Additionally, the Forest Service has recognized that adaptive management is not a simple approach and must be approached with "realistic expectations". SNFPA 3002. Recognizing the limits of a scientific methodology does not invalidate its use. Friends of Endangered Species, Inc. V. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985) (NEPA does not require a court to decide whether an environmental document "is based on the best scientific methodology available...."). Should give deference to adaptive management. Schultz, 992 F.2d at 981 ("We will not second-guess methodological choices made by an agency in its area of expertise.").
E. Failure to Consider Reasonable Range of Alternatives
Plaintiff contends that the 2004 Framework failed to analyze a reasonable range of alternatives to the course of action ultimately adopted, and asserts that this failure violates NEPA.
NEPA does require that federal agencies like the Forest Service herein "produce an EIS that rigorously explores and objectively evaluates all reasonable alternatives so that the agency can sharply define the issues and provide a clear basis for choice among options by the decisionmaker and the public to consider alternatives to the proposed action."
Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1120 (9th Cir. 2002) (citing 40 C.F.R. § 1502.14). As the Ninth Circuit explained, "NEPA regulations describe this alternatives requirement as the 'heart' of the EIS." Id. An EIS is inadequate for purposes of NEPA if it fails to address "[t]he existence of a viable but unexamined alternative. Natural Res. Def. Council, 421 F.3d at 813.
According to Plaintiff, because the 2004 Framework analyzed only two alternatives in any detail (the "no-action" alternative of retaining the existing 2001 Framework and the proposed modification constituting its 2004 successor), the Forest Service failed to consider a reasonable range of alternatives as required by NEPA. The Forest Service counters this argument by asserting that because the 2004 Framework was by definition a "supplemental" environmental impact statement to the original 2001 version, the consideration of numerous alternatives considered in conjunction with the 2001 Framework must necessarily be incorporated by reference in the 2004 version presently under scrutiny. Plaintiff responds by alleging that because the 2001 and 2004 Frameworks rely on different assumptions and models to gage the environmental consequences of the various alternatives, and because the alternatives developed in 2001 were designed to address a significantly different purpose and need than that identified in 2004, the 2004 Framework cannot fall back to the alternative analyses contained within its predecessor.
This viability of these competing arguments has recently been squarely addressed by the Ninth Circuit within the context of a decision overruling this Court's denial of a preliminary injunction sought by Plaintiff to permit logging within three site-specific proposals (Basin, Empire and Slapjack) approved by the Forest Service for logging. In Sierra Forest Legacy v. Rey, ___ F.3d ___, 2008 WL 2097150 (9th Cir. May 15, 2008), the Ninth Circuit looked specifically at whether or not the 2004 Framework rigorously explored and objectively evaluated all reasonable alternatives in analyzing whether plaintiffs had demonstrated a probability of success on the merits for purposes of their entitlement to preliminary injunctive relief. It unequivocally concluded that the Forest Service "cannot rely on its discussion of alternatives in the 2001 FEIS to satisfy its requirement [that reasonable alternatives be evaluated] for the 2004 FEIS. Id. at *2.
In reaching this conclusion, the Sierra Forest Legacy court reasoned that because the Forest Service altered its modeling techniques between the issuance of the 2001 FEIS and the 2004 SEIS but failed to update its analysis of the 2001 FEIS alternatives to reflect these new techniques, changed circumstances were present that rendered improper any reliance by the 2004 Framework on its 2001 predecessor. Id. As the court stated, "where changed circumstances affect the factors relevant to the development and evaluation of alternatives," the Forest Service "must account for such change in the alternatives it considers. Id., citing Natural Res. Def. Council, 421 F.3d at 813-14.
Given the Ninth Circuit's clear precedent on the very issue presently before this Court, summary adjudication in Plaintiff's favor must be granted as to Plaintiff's NEPA claim that the Forest Service failed to consider reasonable alternatives to the 2004 Framework, as required by NEPA.
Based on the foregoing, following careful review and consideration of the parties' Cross Motions for Summary Judgment in this matter, the Court finds in Plaintiff's favor as to the State of California's claim, as set forth in the Fourth Cause of Action, that the Forest Service failed to consider reasonable alternatives to the 2004 Framework as required by NEPA. The Court otherwise GRANTS Defendants' request for summary adjudication as to the remainder of the NEPA and APA claims levied against the Framework in Plaintiff's First, Second, Third and Fifth Causes of Action.*fn17 As requested by the parties, remedies issues with regard to Plaintiff's Fourth Cause of Action shall be adjudicated following further briefing.
The parties are directed to propose a briefing schedule to the Court for its consideration not later than ten (10) days following the date of this Memorandum and Order.
IT IS SO ORDERED.