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Earth Island Institute and v. Nancy Gibson

July 13, 2011

EARTH ISLAND INSTITUTE AND CENTER FOR BIOLOGICAL DIVERSITY,
PLAINTIFFS,
v.
NANCY GIBSON, IN HER OFFICIAL CAPACITY AS FOREST SUPERVISOR FOR THE LAKE TAHOE BASIN MANAGEMENT UNIT, AND UNITED STATES FOREST SERVICE, AN AGENCY OF THE DEPARTMENT OF AGRICULTURE,
DEFENDANTS.



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

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Pending are cross-motions for summary judgment on all claims in Plaintiffs' First Amended Complaint ("FAC"). Plaintiffs challenge the United States Forest Service's ("Forest Service") Angora Fire Restoration Project ("Angora Project"), alleging it violates the National Forest Management Act ("NFMA") and National Environmental Policy Act ("NEPA"). Plaintiffs seek declaratory relief that the Forest Service and Defendant Nancy Gibson (collectively referred to as the "Forest Service") violated NFMA and NEPA, and also request that the Court "[v]acate [the Forest Service's] Angora Project Decision and remand to the agency for further proceedings consistent with the opinion of the Court; or . . . [e]njoin [the Forest Service] from awarding or implementing the Angora Project" as planned. (FAC 19:2-4.) For thereasons stated herein, the Forest Service's motion for summary judgment is granted, and Plaintiffs' motion for summary judgment is denied.

I. Legal Standard

A. Administrative Procedure Act ("APA") Standard of Review

"Because NFMA and NEPA do not provide a private cause of action to enforce their provisions, agency decisions allegedly violating NFMA and NEPA are reviewed under the [APA]." Native Ecosystems Council v. United States Forest Serv. (Ecosystems I), 428 F.3d 1233, 1238 (9th Cir. 2005). "Under the APA, [a court] may set aside an agency decision if it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Id. (quoting 5 U.S.C. § 706(2)(A)). A decision is arbitrary and capricious only if an agency "relied on factors Congress did not intend it to consider, 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." Hapner v. Tidwell, 621 F.3d 1239, 1244 (9th Cir. 2010).

B. NFMA

The National Forest Management Act . . . provides both procedural and substantive requirements. Procedurally, it requires the Forest Service to develop and maintain forest resource management plans. After a forest plan is developed, all subsequent agency action . . . must comply with NFMA and the governing forest plan. Substantively, NFMA requires that forest plans provide for diversity of plant and animal communities based on the suitability and capability of the specific land area.

Earth Island Instit. v. Carlton, 626 F.3d 462, 469-70 (9th Cir. 2010) (quoting Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009).

A 1982 NFMA rule ("1982 rule") "requires the Forest Service to identify and monitor [MIS] and directs that 'fish and wildlife habitatshall be managed to maintain viable populations of existing native and desired non-native vertebrate species.'" Castaneda, 574 F.3d at 657 (quoting 47 Fed. Reg. 43048 (Sept. 30, 1982)). The Forest Service can satisfy this requirement of the 1982 rule by using "habitat as a proxy[,]" meaning "the Forest Service . . . 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." The Lands Council v. McNair, 537 F.3d 981, 994 (9th Cir. 2008) (en banc) (overruled on other grounds by Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 n.10 (9th Cir. 2009)). "However, [the 1982 rule] . . . was partially superceded in 2000[,]" and "[t]he requirements of the superceded 1982 [r]ule apply only to the extent they were incorporated into the Forest Plan." Carlton, 626 F.3d at 470 (quoting Castaneda, 574 F.3d at 657).

C. NEPA

"NEPA is a purely procedural statute, intended to protect the environment by fostering informed agency decision-making." Hapner, 621

F.3d at 1244. "NEPA . . . does not mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions." High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 639 (9th Cir. 2004) (internal quotation marks omitted).

"NEPA requires agencies to prepare a detailed environmental impact statement ('EIS') for all 'major Federal actions significantly affecting the quality of the human environment.'" Hapner, 621 F.3d at 1244 (quoting 42 U.S.C. § 4332(C)). "'As a preliminary step, the agency may prepare an Environmental Assessment ('EA') to determine whether the environmental impact of the proposed action is significant enough towarrant an EIS.'" Id. (quoting High Sierra Hikers, 390 F.3d at 639-40). "An EA must include 'brief discussions' of the need for the proposal, of reasonable alternatives, and of the anticipated environmental impacts." Id. (quoting 40 C.F.R. § 1508.9(b)). "If the agency concludes there is no significant effect associated with the proposed project, it may issue a [Finding of No Significant Impact] in lieu of preparing an EIS." Envtl. Prot. Info. Ctr. v. United States Forest Serv., 451 F.3d 1005, 1009 (9th Cir. 2006).

II. Background

The Angora Fire was a human-caused fire that began in June of 2007 on National Forest System lands in the Lake Tahoe Basin Management Unit ("LTBMU"). (Administrative Record ("AR") 550.) "The Angora fire burned over 3,100 acres, including approximately 2,700 acres of NFS lands, all within the Wildland Urban Interface (WUI) Defense Zone[.]" (AR 550.) The Angora Project was conceived, inter alia, to "reduce the amount of dead and downed trees that resulted from the Angora fire," in order "to reduce long-term fuel loading to reduce future fire severity." (AR 661.)

The LTBMU is managed in accordance with the LTBMU Land and Resource Management Plan ("LTBMU Forest Plan"), which was approved in 1988 and "has been amended several times." (AR 568.) One amendment was the 2007 Sierra Nevada Forests Management Indicator Species Amendment, in which the Blacked-backed Woodpecker ("BBWP") was chosen as a Management Indicator Species ("MIS") for the habitat of "Snags in Burned Forest[.]" (AR 6133, 6135.) "An MIS is a species chosen by the Forest Service to represent a much larger group of native species with similar habitat requirements for environmental assessment purposes." Earth Island Instit. v. Carlton, 626 F.3d 462, 467 n.1 (9th Cir. 2010). BBWPs "are dependent on snags created by stand-replacement fires." (AR 860.) "The abundant snags associated with severely burned forests provide both prey . . . and nesting sites" for BBWPs. (AR 860.)

The Forest Service issued its initial EA for the Angora Project in March of 2010. (AR 253.) Plaintiffs submitted comments in response to the initial EA. (AR 622, 628.) In July of 2010, the Forest Service issued the Final EA, as well as a Decision Notice and Finding of No Significant Impact ("FONSI"); the FONSI approved the Angora Project. (AR 550, 635.) Under the Angora Project, 61.6 percent "of suitable BBWP habitat . . . within the [Angora Project] area would be treated" through the Forest Service's removal of both live and dead trees. (AR 863.) "[A]n average of four of the largest diameter snags would be retained" in the treated areas. (AR 864.) The treated areas "represent[] 0.5% of the total acres of 211,000 acres that severely burned in the Sierra Nevada Bioregion between 2001 and 2007." (AR 867.) The Angora Project area also would include "12 Wildlife Snag Zones, which . . . . would receive minimal to no treatment and are being retained as habitat for a diverse set of species including the BBWP." (AR 865.) Most of the live and dead trees logged in the Angora Project area "will be hauled . . . for disposal at . . . biomass energy facilities." (AR 901.)

III. Discussion

Plaintiffs allege the Forest Service violated NFMA by "fail[ing] to ensure the viability of the [BBWP] as required by the 1988 LTBMU Forest Plan[.]" (FAC ΒΆ 67.) Plaintiffs also allege the Forest Service violated NEPA by 1) not properly considering proposed alternatives to the Angora Project in the final EA; 2) failing to insure the scientific integrity of the final EA; 3) failing to properly respond to "responsible scientific opinion which counsels against the [Angora Project] and/or calls into question the potential environmental effects of the [Angora Project;]" and 4) failing to take the requisite "hard ...


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