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Conservation Congress v. United States v. Forest Service


June 4, 2009


The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge


On May 4, 2009, a hearing was held on cross-motions for summary judgment at which Plaintiffs argued "there is a likelihood" they will suffer irreparable harm if Defendant's planned forest thinning project in the Shasta-Trinity National Forest is not enjoined by a preliminary injunction. Plaintiffs argue this project violates the National Environmental Policy Act ("NEPA") because Defendant failed to disclose in an Environmental Assessment ("EA") the environmental impacts of the project; and that these impacts required Defendant to prepare an Environmental Impact Statement ("EIS"). Plaintiffs also seek summary judgment on their claims that Defendant violated the National Forest Management Act ("NFMA") by failing to monitor for certain species in the project area under the Land and Resource Management Plan ("LRMP") and by only analyzing generalized habitat "assemblages" instead of providing monitoring information and analysis on relevant management indicator species ("MIS").

Defendant seeks summary judgment on all of Plaintiffs' claims.

I. Facts and Prior Proceedings

The project is located on the Yolla Bolla District, South Fork Management Unit, in the Shasta-Trinity National Forest. The project is to "thin[] from below approximately 930 acres of overcrowded forest through timber harvest with associated fuels hazard reduction activities." (AR 142) Defendant states: "The project is needed to develop and maintain vigorous and healthy mixed conifer stands that will be resilient to natural disturbances, the most influential of which is wildfire." (AR 157) The project area includes habitat suitable for nesting/roosting and foraging by the Northern Spotted Owl, which is listed as threatened under the Endangered Species Act.

During the May 4 hearing, Plaintiffs argued they are entitled to have a preliminary injunction issued immediately because they expect to suffer irreparable harm of "loss of the fisher habitat, [and] the loss of canopy closure in particular . . ." should the logging begin in May 2009. (Rep.'s Tr. ("RT") at 5:21-24)

Defendant countered its best estimate of the project commencement date is that trucks would not be able to access the project area until the beginning of June. (RT at 41, 42) Further Defendant offered to provide Plaintiffs at least one week notice prior to beginning any work.

This is the second time Defendant's forest-thinning project has been before this Court. The Ninth Circuit reversed the district court decision in the first case holding that the EA did not analyze an adequate range of alternatives and that Defendant "violated NFMA by failing to sufficiently analyze by proxy whether a diverse population of wildlife . . . that includes the Pacific fisher, will remain in the planning area after implementation [of the] forest-thinning project."

Therefore, the district court's decision was reversed and the case remanded "with instructions to enter summary judgment in favor of [the suing Defendant in the first case]." Further, the district court was instructed "to enjoin the project until [Defendant] . . . completed a new environment assessment consistent with [the Ninth Circuit's] disposition."

The parties reference the first case as East Fork I Project, and the case sub judice as East Fork II Project. Defendant did another EA for the East Fork II Project, which includes an expanded range of considered alternatives and additional information supporting its habitat analysis. At issue is the sufficiency of Defendant's analysis.

II. Standard of Review

Agency decisions that allegedly violate NEPA and NFMA are reviewed under the Administrative Procedure Act ("APA") and may be set aside only if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Although our review under this standard is deferential, the agency must nonetheless articulate a rational connection between the facts found and the conclusions made.

Lands Council v. Martin, 529 F.3d 1219, 1225 (9th Cir. 2008)(quoting Natural Res. Council Fund v. Goodman, 505 F.3d 884, 888-89 (9th Cir. 2007)). "Review under the arbitrary and capricious standard is narrow and the reviewing court may not substitute its judgment for that of the agency." W. Radio Servs. Co. v. Espy, 79 F.3d 896, 900 (9th Cir. 1996) (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376 (1989)). "[A court] may reverse the agency's decision as arbitrary or capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that ran counter to the evidence before the agency, or offered one that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id.

III. Analysis

A. NFMA Claims

Each movant seeks summary judgment on the NFMA claims.

Plaintiffs argue the NFMA, through the LRMP, requires Defendant to monitor the site-specific impact on Management Indicator Species ("MIS"), and that "[t]he EA fails to sufficiently disclose and analyze the project's effects on Pacific fisher." (Pls. Mot. 22:14-19.) Defendant counters, "nowhere in the NFMA or its regulations is there any requirement that the [defendant] conduct population monitoring of 'management indicator species'. . ."; that its habitat assemblages analysis complies with the requirements of both the NFMA and the LRMP; and, that it has complied with the NFMA by thoroughly analyzing the Pacific fisher's habitat, as evidenced by the Pacific fisher addendum analysis. (Defendant's Memo at 17:11-14)

1. Habitat Assemblages Monitoring

Plaintiffs contend "[D]efendant violated NFMA by failing to provide monitoring information or analysis of the effects of the sale on the relevant MIS, and by simply analyzing the health of generalized habitat assemblages. Plaintiffs point to sections of the LRMP's Monitoring Action Plan and argue they require population monitoring. For example, Plaintiffs argue that the LRMP's requirement to "determine population and habitat trends" for certain species (AR 3999), and that "[f]orest personnel will continue to survey for additional populations and habitats of [threatened, endangered, and sensitive] species," mandate monitoring the actual species populations. (AR 3800)

Defendant counters neither the NFMA nor the LRMP Monitoring Action Plan require project-level monitoring; and, it "has consistently interpreted" the Monitoring Action Plan's Indicator Assemblage guidance [as] not designed or intended for project-level monitoring," and its "interpretation of its own forest plan is entitled to deference." (Defs. Mot. 17:22-28; 18:1-3)

The NFMA requires Defendant "to provide a framework to contribute to sustaining native ecological systems by providing appropriate ecological conditions to support diversity of native plant and animal species in the plan area." 36 C.F.R. § 219.10. The LRMP allows Defendant to "[u]se appropriate indicator species or habitat components to represent the assemblage" in order to monitor wildlife. (AR 3999); See Lands Council v. Powell, 395 F.3d 1019, 1036 (9th Cir. 2005) (citations omitted) ("[I]n appropriate cases . . . Forest Service [is allowed] to avoid studying the population trends of the Indicator Species by using Indicator Species habitat as a proxy for Indicator Species population trends in a so-called 'proxy on proxy' approach).

Defendant discussed its interpretation of the LRMP's requirements in the Project EA, stating "[t]he LRMP does not require that [Defendant] conduct fisher or marten population monitoring as precondition to project implementation." (AR 259) If the LRMP "plan language is susceptible to more than one reasonable interpretation, we defer to the agency's interpretation." Hells Canyon Allianc v. USFS, 227 F.3d 1170, 1180 (9th Cir. 2000). "The LRMP specifies that [Defendant] conducts field review of project planning using habitat capability models which was completed and documented in the project Pacific Fisher Report in the project record." (AR 259) Defendant prepared a "report document[ing] the effects of project alternatives on the habitat components of selected assemblages." (AR 1431) The LRMP allows Defendant to monitor wildlife by "[using] appropriate indicator species or habitat components to represent the assemblage." (AR 3999) The monitoring includes: the Goshawk, ("identify and document habitat conditions in nest groves survey habitat and determine occupancy and reproductive success") (AR 4000); and, furbearers, ("[m]onitor furbearer network for occurrence and amount of appropriate habitat attributes and/or special components; field review of project planning using habitat capability models"). (AR 4001). Defendant has determined "habitat and population trends" of many species, (AR 3999-4001), and provides a sufficient habitat analysis. See Native Ecosystems Council v. USFS, 428 F.3d 1233, 1250 (9th Cir. 2005) (stating the Court should be assured Defendant's "knowledge of what quality and quantity of habitat is necessary to support the species and [that] the Forest Service's method for measuring the existing amount of that habitat are reasonably reliable and accurate."); Lands Council v. McNair, 537 F.3d 981, 997-98 (9th Cir. 2008) ("We therefore hold that when the Forest Service decides, in its expertise, that habitat is a reliable proxy for species' viability in a particular case, the Forest Service nevertheless must both describe the quantity and quality of habitat that is necessary to sustain the viability of the species in question and explain its methodology for measuring this habitat."). Therefore, Defendant prevails on this portion of its motion.

2. Pacific Fisher Monitoring Requirements

Plaintiffs also contend the project violates the NFMA's requirement that diversity of plant and animal communities be provided since Defendant failed to monitor for the Pacific fisher population. Plaintiff argues since the NFMA requires that "use and occupancy of National Forest System lands shall be consistent with the LRMP, (16 U.S.C. § 1604(I)) "annual monitoring for actual occupancy" of the [Pacific] fisher habitat is required, and Defendant's failure to meet this requirement violates the NFMA.(Pls. Mot. 11:17-18).

Defendant counters neither the NFMA nor its regulations specify precisely how Defendant must demonstrate that its site-specific plans adequately provide for wildlife viability, and contends that in its Addendum, the Assemblage Report, and the EA, it performed a three-level analysis of the effects on Pacific fisher: studies describing the quality and quantity of habitat necessary to sustain the viability of Pacific fisher, determination of what habitat is suitable for Pacific fisher, and what would be suitable after the project. (Defs. Mot. 16-17:19-5)

Defendant's studies of the project's effects on the Pacific fisher are reflected in the Pacific fisher addendum to the East Fork II Timber Sale Wildlife Report, the Biological Evaluation, (AR 1370-86.), and the EA. (AR 204-07.) Defendant determined that "the project may impact [an] individual[] [Pacific fisher] but is not likely to result in a trend toward federal listing or loss of viability." (AR 1382.) Further, Defendant determined that "[m]ost fisher habitat in the assessment area will not be affected by the project, [and that] about 95% of the existing suitable habitat would be unaffected. (AR 205) In addition, Defendant found that the "Fisher habitat within project units will be modified . . . but current habitat capability levels . . . will not change because key habitat components will be retained (sufficient canopy closure LWD and hardwoods)." Id.

Defendant has sufficiently examined the type of habitat used by the fisher, the type of land the project will affect, and the effect of East Fork II on fisher habitat. Defendant's studies show that Defendant's conclusion that the project "is not likely to result in a trend toward federal listing or loss of viability" of the Pacific fisher has a rational connection to facts in the record. (AR 1382) Therefore, Defendant prevails on this portion of its motion.

B. NEPA Claims

Each party also seeks summary judgment on the NEPA claims.

Plaintiffs argue an EIS must be prepared because "'substantial questions are raised as to whether [the] project ... may cause significant degradation of some human environmental factor.'" Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998). Plaintiffs contend the project will degrade the water quality of already-degraded watersheds, including well-functioning subwatersheds; it may significantly affect the coho salmon, listed under the Endangered Species Act, the Chinook salmon, and critical fish habitats; it "may adversely affect [essential fish habitat] for Pacific coast salmon," as determined by the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration ("NOAA Fisheries"), (AR 1552); and, it may significantly affect the Northern Spotted Owl and its critical habitat. Further Plaintiff argues the EA failed to consider the cumulative impacts of the timber harvest; failed to disclose all of the impacts of the timber harvest; does not disclose the impact on the Northern Spotted Owl since it failed to specify the diameter of trees to be harvested; failed to address the impact of the Project on the Pacific fisher and other MIS; and failed to disclose the Project's effect on water quality and riparian and aquatic habitat because Defendant ignored the recommendations of the Watershed Analysis. Plaintiffs also argue Defendant should have prepared a supplemental NEPA analysis after discovering unforeseen environmental consequences from East Fork I.

However, Defendant's EA considered all the relevant factors and articulated a rational connection between the facts found and the choice made. '" Northcoast Envtl. Ctr. V. Glickman, 136 F3d 660, 666 (9th Cir. 1998)(internal quotes and cite omitted). As evidenced by the Pacific fisher addendum, Defendant rationally concluded that the effects of the project on the Pacific fisher is not likely to result in trend toward federal listing or loss of viability of the Pacific fisher. (AR 1382) Further Defendant received input from the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration ("NMFS") on the effects of the project on the coho salmon and critical fish habitat. (AR 1543-55) The NMFS determined there would be no direct effects from the project on the coho salmon because there were none located in the project area. (AR 1548) The NMFS also determined that "the indirect effects of the project on SONCC coho salmon or critical habitat will be insignificant and/or discountable. (AR 1549)

IV. Conclusion

Defendant has shown its entitlement to summary judgment on all of Plaintiffs' claims. Therefore, Defendant's motion is granted and Plaintiffs' motion is denied. Judgment shall be entered in favor of Defendant.


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