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Earth Island Institute v. Morse

August 5, 2009

EARTH ISLAND INSTITUTE, A NON-PROFIT ORGANIZATION, PLAINTIFF,
v.
KATHLEEN MORSE, IN HER OFFICIAL CAPACITY AS FOREST SUPERVISOR FOR LASSEN NATIONAL FOREST, RANDY MOORE, IN HIS OFFICIAL CAPACITY AS REGIONAL FORESTER FOR REGION 5 OF THE UNITED STATES FOREST SERVICE, AND THE UNITED STATES FOREST SERVICE, DEFENDANTS.



ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; ORDER GRANTING PLAINTIFF'S REQUEST FOR INJUNCTIVE RELIEF

This matter comes before the Court on Plaintiff Earth Island Institute's ("Plaintiff") and Defendants Kathleen Morse, Randy Moore, and the United States Forest Service's (collectively "Defendants") cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

Having considered the parties' submissions and arguments, and for the reasons set forth below, Defendants' motion is DENIED and Plaintiff's motion is GRANTED in part and DENIED in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Earth Island Institute ("Plaintiff") alleges Defendants Kathleen Morse, in her official capacity as Forest Supervisor for Lassen National Forest, Randy Moore, in his official capacity as Regional Forester for Region 5 of the United States Forest Service, and the United States Forest Service (collectively "Defendants") violated the National Environmental Policy Act ("NEPA") by making numerous errors in preparing the Champs Environmental Assessment ("Champs EA").

The errors in the Champs EA that Plaintiff alleges include failing to adequately divulge the methodology used to assess stand density and failing to ensure the scientific accuracy and integrity of the Champs EA. Plaintiff also alleges Defendants violated the Sierra Nevada Forest Plan Amendment and the National Forest Management Act ("NFMA") by failing to monitor and to protect Management Indicator Species ("MIS"). Finally, Plaintiff also alleges Defendants violated the Administrative Procedure Act ("APA") by making decisions that were arbitrary, capricious, an abuse of discretion and not in accordance with the law. Defendants deny the allegations in the Complaint and aver that the project record complies fully with the APA, NEPA, and NFMA.

The instant motions before the Court are Plaintiff and Defendants' cross-motions for summary judgment. (Doc. # 28, 33, 36, 41). This matter is subject to record review under the APA, thus the matter will be resolved based on these motions. Oral argument was heard on the cross-motions for summary judgment on July 1, 2009.

II. ANALYSIS

A. Legal Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The purpose of summary judgment "is to isolate and dispose of factually unsupported claims and defenses." Cleotex v. Catrett, 477 U.S. 317, 323-324 (1986).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 248-49 (1986). If the moving party meets its burden, the burden of production then shifts so that "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting Fed. R. Civ. P. 56(e) and citing Celotex, 477 U.S. at 323). The Court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

The mere existence of a scintilla of evidence in support of the non-moving party's position is insufficient: "There must be evidence on which the jury could reasonably find for [the non-moving party]." Anderson, 477 U.S. at 252. This Court thus applies to either a defendant's or plaintiff's motion for summary judgment the same standard as for a motion for directed verdict, which is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id.

B. Standard of Review

The Administrative Procedure Act ("APA") provides the authority for the Court's review of decisions under NEPA and NFMA. Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008). Under the APA, an agency decision will be set aside only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(s)(A); see Ecology Ctr., Inc. v. Austin, 430 F.3d 1057, 1062 (9th Cir. 2005). "Review under the arbitrary and capricious standard is narrow, and the reviewing court may not substitute its judgment for that of the agency." Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006). Rather, the Court "will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, has entirely failed to consider an important aspect of the problem, or offered an explanation 'that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" Id.

C. Governing Provisions

The National Forest Management Act (NFMA), 16 U.S.C. §§ 1600 et seq., provides both procedural and substantive requirements. Procedurally, it requires the Forest Service to develop and maintain forest resource management plans. Id. § 1604(a). After a forest plan is developed, all subsequent agency action, including site-specific plans, like the Champs Project challenged here, must comply with NFMA and the governing forest plan. Id. § 1604(i); see Lands Council II, 537 F.3d at 989.

The National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., contains additional procedural requirements. Its purposes are to ensure the decision-maker will have detailed information on environmental impacts and to provide that information to the public. Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996). The Forest Service must prepare an EIS, which identifies environmental effects and alternative courses of action, when undertaking any management project. Id.; 42 U.S.C. ยง 4332(2)(C). "In contrast to NFMA, NEPA exists to ensure a process, not to mandate particular ...


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