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Conservation Congress v. United States Forrest Service

United States District Court, Ninth Circuit

June 6, 2013

CONSERVATION CONGRESS, Plaintiff,
v.
UNITED STATES FORREST SERVICE and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants.

MEMORANDUM AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT

WILLIAM B. SHUBB, District Judge.

Plaintiff Conservation Congress brought this action against defendants United States Forest Service ("USFS") and United States Fish and Wildlife Service ("FWS") challenging defendants' actions in connection with three proposed vegetation clearance projects on the Mendocino National Forest. Presently before the court are the parties' cross-motions for summary judgment under Federal Rule of Civil Procedure 56 and plaintiff's motion to defer consideration of its Endangered Species Act ("ESA") claims under Federal Rule of Civil Procedure 56(d).

I. Relevant Facts and Procedural History

In 2012, USFS authorized three projects to take place on the Grindstone Ranger District of the Mendocino National Forest, a unit of national forest managed by USFS. (Administrative Record ("AR") at 45, 528, 655 (Docket Nos. 20, 35).) The Mendocino National Forest is home to the Northern Spotted Owl ("NSO"), a species listed as threatened under the ESA. (Id. at 337.) The Mendocino National Forest also contains the Buttermilk Late Successional Reserve ("Buttermilk LSR"). (Id. at 355, 1477.)[1] The Buttermilk LSR "is the largest LSR on the forest and a crucial link" between various other LSRs in the region. (Id. at 355.)

When initially planning the projects, "all of the Buttermilk LSR [was] designated spotted owl critical habitat" under the 2008 rule for NSO critical habitat, see Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the N. Spotted Owl, 73 Fed. Reg. 47, 326 (Aug. 13, 2008). (AR at 355) In December 2012, a new rule designating NSO critical habitat was published to become effective January 3, 2013. See Endangered and Threatened Wildlife and Plants; Designation of Revised Critical Habitat for the N. Spotted Owl, 77 Fed. Reg. 71, 876 (Dec. 4, 2012). The 2012 rule affected the NSO critical habitat designation of several areas of the Mendocino National Forest. (AR at 2542.)[2]

A. Tatham Ridge Fuels Project

The first project, called the Tatham Ridge Fuels Project ("Tatham Project"), was authorized by a decision memo issued on May 25, 2012. (Id. at 45-53.) The Tatham Project was designed to reduce wildfire hazard, to accelerate tree growth for sustained timber productivity, and to develop late-successional habitat in accordance with the Buttermilk LSR. (See id. at 106, 367, 415-16, 2141.)

The Tatham Project involves three types of treatments: (1) 1, 300 acres of plantation thinning by removing small trees to allow larger trees to grow more quickly; (2) approximately 879 acres of fuel break construction; and (3) 1, 800 acres of prescribed burning of the understory to reduce fuel loading of forests. (Id. at 46, 343-45.) USFS created a biological assessment ("BA") for the Tatham Project. (Id. at 334). At the time of the BA, twenty-six percent of the total action area[3] proposed by the Tatham Project would occur within the Buttermilk LSR. (Id. at 355.) Approximately fifty-four percent of the action area provides suitable NSO nesting/roosting, foraging, or dispersal habitat. (Id.) USFS concluded that the Tatham Project, "May Affect, but is Not Likely to Adversely Affect' the northern spotted owl." (Id. at 383.)

The Tatham Project was determined to qualify for Categorical Exclusion Six ("CE 6"), 36 C.F.R. § 220.6(e)(6), involving timber stand and/or wildlife habitat improvement activities which do not include the use of herbicides. (AR at 48-51.) Thus, while USFS created a BA and decision memo, it did not create an environmental assessment ("EA") or environmental impact statement ("EIS") in connection with the project.

B. Log Springs Project

USFS authorized the Log Springs Project by issuing a decision memo on June 28, 2012. (Id. at 658.) The Log Springs Project proposes the thinning of fifty to seventy year old ponderosa pine over seventy acres to increase resiliency to western bark beatles and to reduce high fuel loads, as well as to meet the timber production quotas for the Mendocino National Forest. (Id. at 655-57, 695-97.) In a joint BA prepared for both the Log Springs and M9 Sanitation Salvage Project ("M9 Project"), USFS determined that the Log Springs Project does not contain any designated NSO habitat or activity centers. (Id. at 823-33.) None of the project area occurs within the Buttermilk LSR, but twenty-one percent of the action area overlaps with the LSR. (Id. at 821-22.) USFS determined that both the Log Springs and M9 Projects "Would Not Affect' the northern spotted owl or its Critical Habitat." (Id. at 831.)

USFS determined that the Log Springs Project qualified for Categorical Exclusion Twelve ("CE 12"), 36 C.F.R. § 220.6(e)(12), involving the timber harvest of seventy acres or less. (Id. at 658.) USFS did not create an EA or EIS for the project.

C. M9 Sanitation Salvage Project

The M9 Project was authorized by USFS through a decision memo issued on June 28, 2012. (Id. at 531.) The M9 Project proposes salvage and sanitation harvest of dead, dying, and at-risk trees on 250 acres, followed by reforestation "to timely restore productivity to desired levels." (Id. at 528-31, 573-75.) The project area exhibits larger than normal pockets of mortality due to bark beatle infestation which contributes to heavy fuel loads. (Id. at 528, 530, 571-72.) The M9 Project is designed to address past beatle attacks, reduce fuel load on the forest, and contribute to the Mendocino National Forest's annual timber harvest levels. (Id. at 529-30.) As with the Log Springs Project, none of the project area occurs within the Buttermilk LSR, but twenty-one percent of the action area overlaps with the LSR. (Id. at 821-22). No designated NSO habitat or activity centers are present within the M9 Project area. (Id. at 823-33.) The joint BA found that the M9 and Log Springs Projects "Would Not Affect' the northern spotted owl or its Critical Habitat." (Id. at 831.)

USFS determined that the M9 Project fit within Categorical Exception Thirteen for the salvage harvest of 250 acres or less of dead or dying trees ("CE 13"), 36 C.F.R. § 220.6(e)(13), Categorical Exception Fourteen for sanitation harvest to control insects or disease ("CE 14"), id. § 220.6(e)(14), and Categorical Exclusion Five for the regeneration of native species ("CE 5"), id. § 220.6(e)(5). (AR at 527, 531.) USFS did not create an EA or EIS in connection with the project.

D. Procedural History

Plaintiff is a non-profit organization dedicated to maintaining, protecting, and restoring the native ecosystems of northern California. (Compl. ¶ 18 (Docket No. 1).) Plaintiff filed suit challenging defendants' actions in connection with the approval of the three projects, bringing claims under both the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the ESA, 16 U.S.C. § 1531 et seq. Plaintiff's NEPA claims are brought exclusively against USFS and include: (1) improper use of a categorical exclusion; (2) failure to analyze cumulative impacts of the three projects; and (3) failure to prepare an EIS. (Id. ¶¶ 122-152.) Plaintiff also brings various ESA claims, the majority of which are brought against both USFS and FWS. (Id. ¶¶ 153-196.)

On December 21, 2012, defendants moved to limit the court's review to the administrative record and deny discovery by plaintiff. (Docket No. 17.) The court denied the motion without prejudice to the right to object subsequently to the consideration of material outside of the record. (Feb. 26, 2013 Order at 2 (Docket No. 29).) The court ordered that "[p]laintiff may pursue discovery regarding its ESA claims against USFS while plaintiff litigates its summary judgment motion on its claims under [NEPA]." (Id.)

Plaintiff moved for summary judgment on its NEPA claims under Rule 56. (Docket No. 30.) Defendants, in their cross-motion for summary judgment, moved for summary judgment on both the NEPA and ESA claims. (Docket No. 39.) Plaintiff moved to defer consideration of the ESA claims under Rule 56(d). (Docket No. 41.)

II. Motion to Defer

Rule 56(d) provides that "[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may... defer considering the motion or deny it." Fed.R.Civ.P. 56(d). "To prevail under... Rule [56(d)], [a] part[y] opposing a motion for summary judgment must make (a) a timely application which (b) specifically identifies (c) relevant information, (d) where there is some basis for believing that the information sought actually exists." Emp'rs Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co. , 353 F.3d 1125, 1129 (9th Cir. 2004) (internal quotation marks and citation omitted).

Here, plaintiff notes that the deposition of its ESA expert has yet to occur, and documents regarding the defendants' continued consultation regarding the Tatham Project were produced during the briefing of the cross-motions for summary judgment. (Docket No. 36.) The court finds plaintiff's application sufficient to defer consideration of its ESA claims under Rule 56(d), and plaintiff's motion will accordingly be granted.

The court now turns to the parties' cross motions for summary judgment on plaintiff's NEPA claims.

III. Cross-Motions for Summary Judgment

The court reviews NEPA claims to determine whether they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" under the Administrative Procedure Act ("APA"). 5 U.S.C. § 706(2)(A); see Ctr. for Biological Diversity v. Salazar , 706 F.3d 1085, 1090 (9th Cir. 2013). "Agency action is arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision 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.'" Great Old Broads for Wilderness v. Kimbell , 709 F.3d 836, 846 (9th Cir. 2013) (quoting City of Sausalito v. O'Neill , 386 F.3d 1186, 1206 (9th Cir. 2004)).

"A reviewing court generally must be at its most deferential when reviewing scientific judgment and technical analyses within the agency's expertise." Id . (internal quotation marks and citation omitted). The court also "defers to [the agency's] interpretation of its own regulations... unless plainly erroneous or inconsistent with the regulations being interpreted.'" Salazar , 706 F.3d at 1090 (alteration in original) (quoting Long Island Care at Home, Ltd. v. Coke , 551 U.S. 158, 171 (2007)). "As the Supreme Court stated in Citizens to Preserve Overton Park, Inc. v. Volpe, the ultimate standard of review is a narrow one, ' and [t]he court is not empowered to substitute its judgment for that of the ...


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