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Earth Island Institute, A Non-Profit v. Alice B. Carlton

March 28, 2012


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


This matter arises out of Plaintiff's claims that Defendants approval of the Moonlight-Wheeler post-fire logging and restoration project, located in Plumas National Forest in the northern Sierra-Nevada mountain range, violated the National Forest Management Act and the National Environmental Policy Act.

Presently before the court are the parties' cross-motions for summary judgment.*fn1 For the reasons set forth below, Plaintiff's motion is DENIED and Defendants' motion is GRANTED in its entirety.


A. Brief Factual Background

Both this court and the Ninth Circuit set forth the relevant facts of this case in intricate detail in their respective memoranda denying Plaintiff's motion for preliminary injunction. To this end, the court only recounts those facts necessary to provide sufficient context for court's analysis.

The Moonlight and Wheeler fires burned through portions of the Plumas and Lassen National Forests in the summer of 2007. The majority of the fire burned at both moderate and high severity. In total, of the acres burned by the Moonlight and Wheeler fires, approximately 78% was on the PNF and 22% was on private land.

The fires burned approximately 41,000 acres of National Forest land with high severity such that "it resulted in a deforested condition characterized by relatively large areas of standing dead trees" ("snags"), "where seed source of desired species is insufficient to naturally regenerate these areas." (AR 276.) Such moderate and high severity burn areas are the most habitable environment for the Black-Backed Woodpecker (BBWO).

The Plumas National Forest (PNF) is managed in accordance with the PNF Land and Resource Management Plan (PNF Plan), originally adopted in 1988. (AR 10579.) The PNF Plan was amended in 2004 (AR 10445) and again in 2007 by the Management Indicator Species*fn3 (MIS) Amendment (AR 10308). The 2007 MIS added a number of MIS species, including the BBWO, which the USFS is required to monitor at the bioregional scale. The monitoring strategy selected for MIS, including the BBWO, are habitat trend monitoring and distribution population monitoring at the Sierra Nevada regional level "by monitoring the changes in the presence of the species across a number of sample locations." (AR 10308 [2007 MIS Amendment ROD at 2].)

In response to the alteration of the forest resource conditions caused by the fires, the United States Forest Service (USFS) recognized the need to undertake a combination of management activities, including both restoration and timber harvest.

USFS therefore proposed the project to address several purposes:

(1) to "remove hazardous trees with structural defects" that pose a safety risk to the public and USFS employees along a 123-mile stretch of National Forest road; (2) to "recover the value of fire-killed trees before natural deterioration occurs . . . and provid[e] a wood supply for . . . sustaining a part of the employment base in rural communities"; and (3) to plant native conifer seedlings to expedite forest regeneration, recover forested conditions and prevent domination of shrub species. (AR 275-76, 288.)

On June 16, 2009, USFS issued its Revised Final Environmental Impact Statement (RFEIS). (AR 262.) The RFEIS considers five alternatives in detail: the no-action alternative (Alternative B); three action alternatives (Alternatives A, C, D) involving a combination of timber harvest, hazard tree removal, and restoration activities; and a fifth action alternative (Alternative E) consisting of hazard tree removal and restoration activities only. (AR 284-99.) Six other alternatives were previously considered, including one proposed by plaintiff that was eliminated from the study for various reasons. (AR 300-306.) Attached as an exhibit to the RFEIS, USFS provided extensive responses to comments previously submitted by Plaintiff regarding the Revised Draft Environmental Impact Statement. (See AR 587-667.)

On July 12, 2009, the USFS signed the Record of Decision (ROD) for the Moonlight-Wheeler Project, adopting Alternative A for implementation. (AR 203.)

The ROD identified Alternative A as the alternative that "best meets the needs identified for this project" and as "consistent with the goals and objectives of the [PNF Plan]." (AR 209.) This conclusion was "based on a thorough review of the best available science, consideration of responsible opposing views, and the acknowledgment of incomplete or unavailable information. (Id.) The selected alternative authorized timber harvest of fire-killed trees on approximately 10,366 total acres of the 41,290 acres of high vegetation burn severity areas using ground based, skyline and helicopter harvest methods. (Id.) In addition, harvest of fire-killed or dying (fire-injured) conifer hazard trees was authorized on 4,389 acres along 123 miles of road. (Id.)

According the PNF contracting officer, to date "no additional salvage logging units will be offered for sale under the Moonlight-Wheeler ROD"; therefore, there will be no more logging under the moonlight-wheeler project. (Decl. of Elaine Gee, filed Oct. 17, 2011, [ECF No. 97] ¶¶ 9-10.)*fn4

Plaintiff now contends that it is entitled to summary judgment on its claims that the Project violated NEPA and NFMA. Specifically, Plaintiff contends that Defendants violated NEPA by: (1) failing to ensure the scientific integrity of USFS' analysis of the Project's impact on the BBWO; (2) failing to meaningfully respond to dissenting scientific opinion regarding the BBWO; (3) failing to take a hard look at the impacts of the Project; and (4) failing to prepare a Supplemental Environmental Impact Statement in light of new information concerning the BBWO. Plaintiff avers that Defendants violated NFMA by failing to ensure the viability of the BBWO, as allegedly required by the PNF; specifically, failing to determine the necessary quantity and quality of habitat necessary for viability of the BBWO. Defendants also filed a motion for summary judgment, arguing that Plaintiff has failed to provide sufficient evidence to establish each essential element of their claims, and thus, Defendants are entitled to judgment as a matter of law.

B. Procedural Background

On July 24, 2009, Plaintiff moved this court to preliminary enjoin implementation of the project. (Pl.'s Mot. for Prelim. Inj., filed July 24, 2011, [ECF No. 13].) This court, by memorandum and order, on August 20, 2009, denied Plaintiff's motion. (Court's Mem. & Order, filed Aug 20, 2009, [ECF No. 53].)

Relevant for purposes of this motion, the court held that the RFEIS ensured the scientific integrity of its analysis; USFS adequately responded to dissenting scientific opinion; and complied with the PNF Plan. (See generally id.) Thus, the court held that Plaintiff did not demonstrate a likelihood of success on the merits of either their NEPA or NFMA claims. (Id.) As a general matter, the court determined that, based on the opposing declarations and exhibits filed by the respective parties, the question came down to a battle of the experts. (Id. at 26:22-23,) The court therefore deferred to the Agency's expertise, as required by the Administrative Procedures Act (APA). The Ninth circuit affirmed the District Court's denial of the motion in all regards. (USCA Op., filed Nov. 8, 2010, [ECF No. 69]; Earth Island Institute v. Carlton, 626 F.3d 462 (9th Cir. 2010).) Plaintiff filed an amended complaint on June 26, 2008.*fn5 (Pl.'s First Am. Compl., filed Jun. 26, 2008, [ECF No. 84].)


A. Summary Judgment

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324. Indeed, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. In such a circumstance, summary judgment should be granted "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

Summary judgment is appropriate in cases, like the present matter, which involve judicial review of administrative action where review is based upon an administrative record. National Wildlife Fed'n v. Babbitt, 128 F. Supp. 2d 1274, 1289, see also Northwest Motorcycle Ass'n v. U.S. Dept. Of Agriculture, 18 F.3d 1468 (9th Cir. 1994). In such cases, summary judgment is a unique procedure, more akin to a motion to dismiss.

See Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993). The court's role in considering summary judgment in this context is not so much to resolve contested questions of fact which may exist in the record; instead, "the court must determine the legal question of whether the agency's action was arbitrary and capricious." Gilbert Equip. Co., Inc. v. Higgins, 709 F. Supp. 1071, 1077 (S.D. Ala. 1989), aff'd, 894 F.2d 412 (11th Cir. 1990); see also Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985) (stating the court's role "is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did").

B. APA Standard

Plaintiff brings the instant challenges under NEPA and NFMA pursuant to the APA. Thereunder, the court may set aside a final agency action only where the action is "arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law." 5 U.S.C. § 706. Review under the APA is "searching and careful." Ocean Advocates v. United States Army Corps of Eng'rs, 361 F.3d 1108, 1118 (9th Cir. 2004). However, the court may not substitute its own judgment for that of the agency. Id. In short, the court must ensure that the agency has taken a hard look at the environmental consequences of its proposed action. Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997).

As part of this inquiry, the court should ask "whether the [] decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment." Ocean Advocates, 361 F.3d at 1118. In addition, the court determines "whether the agency articulated a rational connection between the facts found and the choice made." Id. at 1118-19 (quoting Arizona ...

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