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ForestKeeper v. Elliott

United States District Court, E.D. California

September 25, 2014

SEQUOIA FORESTKEEPER, CENTER FOR BIOLOGICAL DIVERSITY and WESTERN WATERSHED PROJECT, Plaintiffs,
v.
KEVIN ELLIOTT, in his official capacity as Forest Supervisor for the Sequoia National Forest of the U.S. Forest Service, and the UNITED STATES FOREST SERVICE, Defendants

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[Copyrighted Material Omitted]

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For Sequoia ForestKeeper, Western Watersheds Project, Plaintiffs: Rene Peter Voss, LEAD ATTORNEY, Rene P. Voss, Attorney at Law, San Anselmo, CA.

For Center for Biological Diversity, Plaintiff: Rene Peter Voss, LEAD ATTORNEY, Rene P. Voss, Attorney at Law, San Anselmo, CA; Justin John Augustine, Center for Biological Diversity, San Francisco, CA.

For Kevin B. Elliott, in his official capacity as Forest Supervisor for the Sequoia National Forest of the U.S. Forest Service, United States Forest Service, Defendants: Stuart C. Gillespie, GOVT, LEAD ATTORNEY, Department of Justice, Washington, DC.

For Sierra Forest Products, Amicus: Thomas C. Brodersen, Williams, Brodersen & Pritchett LLP, Visalia, CA.

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MEMORANDUM OPINION AND ORDER ON PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT AND RELATED ORDERS Doc. #'s 18, 19, 23 and 24

ANTHONY W. ISHII, SENIOR UNITED STATES DISTRICT JUDGE.

This is an action for declaratory and injunctive relief pursuant to the National Environmental Policy Act (" NEPA" ) 42 U.S.C. § § 4321, et seq. At issue is a planned action by defendant Kevin Elliott in his official capacity as Forest Supervisor for the Sequoia National Forest and the United States Forest Service (" Forest Service" ) (collectively, (" Defendants" ) to implement what the parties refer to as the Rancheria Forest Restoration Project (" Project" ). Plaintiffs Sequoia ForestKeeper (" ForestKeeper" ), Centers for Biological Diversity and Western Watershed Project (" Plaintiffs" ) allege that Defendants violated NEPA during the decision making process by failing to " provide the Plaintiffs and the public with sufficient information during official comment periods to provide meaningful and informed comments prior to issuance of [Defendants'] decision to implement the [Project]." Doc. # 7 at 2:13-15. Currently before the court are cross-motions by Plaintiffs and Defendants for summary judgment. Also before the court is the motion of Sierra Forest Products to submit a brief as amicus curiae. Federal subject matter jurisdiction exists over Plaintiffs' claims pursuant to 28 U.S.C. § 1331. Venue is proper in this court.

JOINT STATEMENT OF UNDISPUTED FACTS

The parties jointly offer the following facts as undisputed.

The Project is located in Kern County and encompasses 5,880 acres near Rancheria Road in the Greenhorn Mountains of the Sequoia National Forest. The Project lists three purposes: (1) " Promote a healthy, diverse forest ecosystem that is resilient to the effects of wildfire and other threats, and environmentally, socially, and economically sustainable." (2) Reduce fuels and [forest] stand density to reduce the risk to people, property, and wildlife habitat from uncharacteristically severe wildfire. (3) restore a structure and function that generally resemble [sic] pre-settlement conditions." Doc. # 18-2 at 2:24-27. To realize the purposes of the Project, Defendants considered three options. The first, Option 1, was the " no action" alternative and requires no further explanation.

Option 2, the option that was eventually adopted, authorized " mechanical thinning, including timber and biomass removal, on 1,102 acres, including 842 acres of natural

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stands and 260 acres of plantations. Proposed actions on those 1,102 acres include mechanical thinning of trees 4 to 30 inches in diameter, whole tree yarding, pile burning, underburning, and pine planting." Doc. # 18-2 at 3:1-4. Option 2 also authorizes " hand thinning, pile burning, underburning, or jackpot burning on an additional 4,396 acres in natural stands, plantations, meadows, or in goshawk protected activity centers. No treatment is proposed for 381 acres of chaparral within the project area." Id. at 3:5-9.

Option 3, which was not chosen in favor of Option 2, would have authorized the thinning by hand only of smaller trees; those from 3 to 8 inches in diameter. Unlike Option2, Option 3 has no commercial timber removal because thinning is limited to small trees having no commercial value. As the court understands the differences between Options 2 and 3, they boil down to this: Option 3 is basically a less intense version of Option 2 that limits impacts on the ecology of the Project area by avoiding mechanical thinning (and the attendant potential of disruption to soils and forest floor watershed), partially avoids the removal of high canopy cover by limiting maximum diameter of thinned trees but results in a more limited removal of potential fuel from the understory.

The parties' Joint Statement of Undisputed Facts (" Joint Statement" ) provides the following information concerning the process leading to the issuance of the Project Environmental Assessment (" EA" ). The following information is excerpted or quoted from ¶ ¶ 11 through 45 of the parties' Joint Statement.

The current iteration of the Project was preceded by a project called the Sawmill Fuels Reduction Project (" Sawmill Project" ) which incorporated the same general area as the Project. Forest Service issued a decision to proceed on the Sawmill Project in April of 2005. That decision was successfully administratively appealed by Plaintiff ForestKeeper, who contended that the EA issued for the Sawmill Project " failed to provide an adequate cumulative impacts analysis of past, present and future logging projects that would reduce canopy cover for Old Forest dependent species including the Pacific fisher,[1] California spotted owl, and northern goshawk." Doc. # 18-2 at 4:6-9.

After reversal of Forest Service's planned Sawmill Project in July of 2005, the Forest Service began a planning forum in 2010 referred to as the Sawmill Project Planning Forum. A number of stakeholders, including Defendant ForestKeeper participated in the forum, which included three public meetings and a field trip. " On May 9, 2011, the Sequoia National Forest released its proposal for the Rancheria Project through the NEPA scoping process, seeking comments on the proposal through June 15, 2011." Id. at 5:1-2. The Forest Service received scoping comments from thirteen of the solicited parties, including from Plaintiff ForestKeeper who submitted seventeen pages of scoping comments as well as several attached exhibits. As a result of the scoping process, the Forest service released " a more fully developed proposed action for the Rancheria Project," upon which Forest Service sought additional comments through May 23, 2013. A cover letter

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accompanying the proposed action explained that:

[T]he comment period [for the " Proposed Rancheria Forest Restoration Project] would close 30-days after publication of notice in the Porterville Record. The cover letter further explained that only those who submitted timely, specific written comments during this comment period, or [submitted comments during] the previous scoping period in May and June 2011, would be eligible to appeal the decision, which the Forest Service intended to make in the summer of 2013. The cover letter and revised proposal document was also sent directly to a list of interested parties, including [Plaintiffs].

Id. at 6:1-7.

The public comment period commenced on April 23, 2013, with the publication of notice in the Porterville Record and the Bakersfield Californian and closed on May 23, 2013. Plaintiff Center for Biological Diversity submitted a 12-page comment letter on May 15, 2012 and Plaintiffs ForestKeeper and Western Watershed Project submitted a 7-page comment letter and exhibits on May 23, 2013.

Of considerable significance to Plaintiffs' action, several " specialist reports" were reviewed and approved by Forest Service during the 30-day comment period. Some of these reports were finalized and released to the public before the close of the comment period and some were finalized and released after the comment period had closed. The specialist reports that were finalized and issued after the close of the comment period include the Air Quality Report, Range Management Report, Socioeconomics Report, Fuels Report, Management Indicator Species Report, Forest Vegetation and Silviculture Report, Wildlife Biological Assessment and Evaluation, Supplemental Biological Evaluation for [Pacific] Fisher, Maps for the Supplemental Biological Evaluations for the Fisher, Appendix A, and Transportation Report.

" On July 5, 2013, Defendant Sequoia Forest Supervisor Elliot issued the Rancheria Project Notice of Decision and Finding of No Significant Impact (FONSI) along with an Environmental Assessment, which included a response to public comments. Doc. # 18-2 at 7:10-12. On July 9, 2013, Forest Service staff provided a web address link to various documents, including specialists' reports that were related to the Project in response to the request of Plaintiff ForestKeeper. On the same date, Plaintiff ForestKeeper sent an email to Forest Service staff noting that Forest Service had not provided a " Preliminary EA," which the attorney considered to be not in keeping with past practice. The email also opined that the " previous comment period in April-May did not provide sufficient information or any preliminary environmental analysis to provide meaningful comments." Id. at 7:20-21. Defendant Elliot responded that the Forest Service was " not required to publish a preliminary or draft Environmental Assessment.

On July 18, 2013, Forest Service released a Supplemental Biological Evaluation for the Pacific fisher, however the corrections did not alter the determination reached in the Fisher Supplemental Biological Evaluation issued on July 3, 2013. On August 19, 2013, each of the Plaintiff parties filed separate administrative appeals of the Project decision. The administrative appeals challenged the FONSI on the ground that several of the specialist reports were issued too late to be considered and commented upon during the 30-day comment period. The parties' administrative appeals were denied on September 25, 2013. There is no dispute that Plaintiffs have properly exhausted administrative

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remedies with regard to this action.

The parties have provided a number of joint facts concerning the Pacific fisher. A few of these are of importance in the discussion that follows. The entire Project area is contained within the Southern Sierra Fisher Conservation Area (" SSFCA" ), which was established in the 2001 Sierra Nevada Forest Plan Amendment. The project area represents the southern-most extent of area of Pacific fisher habitation. Pacific fishers inhabit portions of the western slope of the Sierra Nevada mountain range at elevations between 3,000 and 8,000 feet. The parties agree that " Pacific fishers use habitat with high canopy closure, large trees and snags, large woody debris, large hardwoods, multiple canopy layers and [avoid] areas lacking overhead canopy cover." Id. at 9:27-10:1.

LEGAL STANDARD

The Parties' cross-motions for summary judgment seek the court's determination of the question whether Defendants issued the EA and FONSI in violation of the requirements of NEPA. A district court reviewing a final agency decision follows the legal standard provided by the Administrative Procedures Act (" APA" ). Pursuant to 5 U.S.C. § 706(2)(A), a reviewing court may not set aside a final agency decision unless it finds that action to be " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In applying this standard of review, the district court bases its decision on the Administrative Record (" AR" ) the agency presents to the court. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). A court generally must be 'at its most deferential' when reviewing scientific judgments and technical analyses within the agency's expertise. [Citation.]" N. Plains Res. Council v. Surface Transp. Bd., 668 F.3d 1067, 1075 (9th Cir. 2011) (citing Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). " Judicial review of agency decision-making under NEPA is limited to the question of whether the agency took a 'hard look' at the proposed action as required by a strict reading of NEPA's procedural requirements." Bering Strait Citizens for Responsible Dev. v. U.S. Army Corps of Eng'rs, 524 F.3d 938, 947 (9th Cir. 2008).

While a reviewing court is highly deferential to the factual determinations of the agency that are within the expertise of that agency, the review of agency procedure in light of NEPA's requirements is less deferential. " The council on Environmental Quality (" CEQ" ) is charged with promulgating regulations to ensure that the policies and requirements of NEPA will be carried out by federal agencies. 42 U.S.C. § 4344." Sierra Nevada Forest Protection Campaign v. Weingardt, 376 F.Supp.2d 984, 990 (E.D. Cal. 2005) (" Weingardt" ). In particular, those procedural rules that mandate involvement of the public, " to the extent practicable, in preparing an Environmental Assessment. . . ," 40 C.F.R. § 1501.4(b), and mandate " diligent efforts to involve the public in preparing in preparing and implementing their NEPA procedures" by providing " public notice of NEPA-related hearings, public meetings, and the availability of environmental documents so as to inform those persons and agencies who may be interested or affected," 40 C.F.R. § § 1506.6(a) and (b). Subsections 1501.4 and 1506.6 are substantive rules whose violation may invalidate an agency action.

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Citizens for Better Forestry v. U.S. Dep't Ag., 341 F.3d 961, 970 (9th Cir. 2003); see also Weingardt, 376 F.Supp.2d at 989-990 (" agency decision taken without the required ...


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