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Conservation Congress v. United States Forest Service

United States District Court, E.D. California

May 29, 2018

CONSERVATION CONGRESS, Plaintiff,
v.
UNITED STATES FOREST SERVICE, et al., Defendants.

          MEMORANDUM AND ORDER

          MORRISON C. ENGLAND JR, UNITED STATES DISTRICT JUDGE

         This case arises out of the approval of the Lava Hazardous Fuels Reduction Project (the “Lava Project” or the “Project”) in the Modoc National Forest (the “Forest”) by Defendants United States Forest Service (“USFS”) and United States Fish and Wildlife Service (“FWS”) (collectively “Defendants”).[1] According to Plaintiff Conservation Congress (“Plaintiff”), USFS and FWS violated the Endangered Species Act (“ESA”), the National Forest Management Act (“NFMA”), the National Environmental Policy Act (“NEPA”), the Administrative Procedure Act (“APA”), and the statutes' implementing regulations. At base, Plaintiff's concern is that the agencies did not adequately measure and/or consider the effects the Project will have on the Northern Spotted Owl (“NSO”), a threatened species under the ESA, or the gray wolf, a species classified under the ESA as endangered. Plaintiff thus seeks to enjoin the Government from proceeding with the Project until they have complied with the applicable laws.

         Presently before the Court are the parties' Cross-Motions for Summary Judgment and Plaintiff's Motion for Preliminary Injunction. Having reviewed the record, it appears that Plaintiff simply disagrees with the Government's decisions on how to manage forest habitat and how to protect and conserve the NSO and the gray wolf. Plaintiff points to no actual legal error, however, and its summary judgment motion (ECF No. 46) is thus DENIED.[2] Defendants' Motions, on the other hand, are GRANTED (ECF Nos. 51-52), judgment shall be entered in their favor, and Plaintiff's Motion for Preliminary Injunction (ECF No. 62) is DENIED as moot.[3]

         LEGAL BACKGROUND[4]

         A. Endangered Species Act (ESA)

         The ESA was enacted “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b). For species listed as threatened or endangered, the Secretaries of the Interior and Commerce will also designate critical habitat. 16 U.S.C. § 1533(a)(3)(A). Under ESA section 7(a)(2), each federal agency must ensure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of the species' designated critical habitat. 16 U.S.C. § 1536(a)(2). In fulfilling this obligation, each agency is required to “use the best scientific and commercial data available.” Id.

         If the action agency independently determines that the action will have “no effect” on listed species or critical habitat, the agency has no further obligations under the ESA. Pac. Rivers Council v. Thomas, 30 F.3d 1050, 1054 n.8 (9th Cir. 1994) (“[I]f the agency determines that a particular action will have no effect on an endangered or threatened species, the consultation requirements are not triggered.”); Friends of the River v. U.S. Army Corps of Eng'rs, 870 F.Supp.2d 966, 971-72 (E.D. Cal. 2012) (“If the agency determines that a particular action will have ‘no effect' on a listed species or critical habitat, there is no consultation requirement.”). If, however, an agency determines that its actions “may affect” a listed species or its critical habitat, the agency must consult informally or formally with either FWS within the Department of the Interior or the National Marine Fisheries Service within the National Oceanic and Atmospheric Administration, depending on the species at issue. 50 C.F.R. §§ 402.01, 402.14(a)-(b).

         Informal consultation is “an optional process that includes all discussions, correspondence, etc., between the Service and the Federal agency . . . designed to assist the [action agency] in determining whether formal consultation . . . is required.” 50 C.F.R. § 402.13(a). “If during informal consultation it is determined by the [action agency], with the written concurrence of [FWS], that the action is not likely to adversely affect listed species or critical habitat, the consultation process is terminated, and no further action is necessary.” Id. If the action agency or FWS determines that the proposed action is likely to adversely affect listed species or designated critical habitat, the agencies proceed through formal consultation under Section 7 of the ESA. Id. § 402.14(a)-(b). This process culminates in a biological opinion (“BiOp”), which includes a “detailed discussion of the effects of the action on listed species or critical habitat.” Id. § 402.14(h)(2). The BiOp assesses the likelihood of the proposed action resulting in jeopardy to a listed species or destruction or adverse modification to designated critical habitat. 50 C.F.R. § 402.14(g). The BiOp will also include an “incidental take statement, ” which, if complied with, exempts the action from the prohibition against take. 16 U.S.C. §§ 1536(b)(4); 1532 (defining “take”).

         B. National Environmental Policy Act (NEPA)

         NEPA is a procedural statute that requires federal agencies to consider the impacts of, and alternatives to, federal actions significantly affecting the environment. 42 U.S.C. §§ 4321, 4331. It ensures that federal agencies take a “hard look” at the environmental consequences of their proposed actions before deciding to proceed. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51 (1989). “A court generally must be ‘at its most deferential' when reviewing scientific judgments and technical analyses within the agency's expertise under NEPA.” Native Ecosys. Council v. Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012) (citation omitted). Courts apply a “rule of reason” and “need not ‘fly-speck' the document and ‘hold it insufficient on the basis of inconsequential, technical deficiencies.'” Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996) (citation omitted).

         NEPA requires the preparation of an environmental impact statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). An agency may prepare an Environmental Assessment (“EA”) to determine if an EIS is required. 40 C.F.R. §§ 1501.4(b), 1508.9. An EA is a concise public document that briefly describes the proposal, examines alternatives, considers environmental impacts, and lists individuals and agencies consulted. 40 C.F.R. § 1508.9. If an agency concludes the proposed action has no significant effect, “it may issue a [finding of no significant impact (“FONSI”)] in lieu of preparing an EIS.” Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1009 (9th Cir. 2006); see 40 C.F.R. § 1508.9(a)(1).

         C. The Administrative Procedures Act (APA)

         Agency decisions are reviewed under the judicial review provisions of the APA, 5 U.S.C. §§ 701-06. See The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008). Under the APA, agency decisions may be set aside if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In accordance with that standard, an agency's decision will be overturned

only if the agency 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.

McFarland v. Kempthorne, 545 F.3d 1106, 1110 (9th Cir. 2008) (citations and quotations omitted). The standard of review is “highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.” Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) (citation omitted). The APA “does not allow the court to overturn an agency decision because it disagrees with the decision or with the agency's conclusions about environmental impacts.” River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010) (per curiam) (citation omitted).

         FACTUAL AND PROCEDURAL BACKGROUND[5]

         A. The Project

         The Forest spans approximately two million acres, FS[6] 11571, and is managed pursuant to the 1991 Modoc National Forest Land and Resource Management Plan (“Forest Plan”), as amended by the Sierra Nevada Forest Plan Amendment (“SNFPA”) and the 1994 Northwest Forest Plan (“NWFP”). FS 23. In the early 20th century, the Forest was managed to exclude fire, harvest timber, and graze livestock, resulting in “increased tree densities, altered species composition, and increased surface, ladder, and canopy fuels within the project areas.” FS 17. The Forest stands are now subject to drought-induced tree mortality due to inter-tree competition for resources (i.e., light, nutrients, and water), and “the area is less resilient to inherent disturbances, such as fire, insects, and disease.” Id. Moreover, due to the abundance of ladder fuels (i.e., short trees and shrubs), the Project area is at particular risk of experiencing devastating “stand replacing wildfires” that burn through the crowns of trees. Id. “In addition to the potential of high severity fire and the risk to firefighter safety, crown fires have the potential to carry into the three 500 Kilovolts (KV) power lines located within the project area.” FS 21.

         In light of these conditions, the Forest Service identified “a need to establish treatments that reduce risks of fires and insect outbreaks in NSO habitat and to restore broad ecological functions and processes.” FS 22. The Forest Service determined that such “[t]reatments need to be designed to increase the likelihood of conserving spotted owl sites and high value habitat in and adjacent to the treatment areas.” Id. To satisfy this need, the Forest Service conducted scoping for the Lava Project in March 2011 to develop a project that would reduce fuel loads, improve forest health, and provide for the long term protection and enhancement of wildlife habitat, including NSO habitat. FS 2-3; FS 22; see generally FS 17-22 (describing purpose and need for Project). The USFS completed an extensive EA for the Project pursuant to NEPA. See FS 14-119. The EA incorporated various detailed specialist reports. See, e.g., FS 44 (silviculture); FS 53 (fuels); FS 66 (wildlife).

         The Project contemplates “a combination of vegetation and fuels treatments designed to reduce fuel loading and competition between trees while maintaining or promoting old growth habitat.” FS 22. The Project provides for vegetation treatments on 3, 819 acres of thinning from below (including 2, 652 acres of commercial thinning), 886 acres of plantation thinning and 22 acres of radial thinning. FS 22; FS 34. Prescribed fire (underburning) will occur on approximately 4, 017 acres. FS 22; see also FS 35 (map identifying thinning treatments). In addition, a 300-foot wide (58-acre) fuel management zone (“FMZ”) will be created along a main road in the Project area. FS 2; FS 22; FS 7605. This fuel break will enhance fire suppression efforts by providing “better spacing for firefighters to backfire, use fire engines, or use aerial retardant to stop a fire approaching from either side of the road.” FS 7605. Finally, three quarters of a mile of temporary roads will be constructed and decommissioned after use. FS 2; see also FS 33-36 (describing Project activities). The Project also incorporated several design criteria and mitigation measures to minimize potential negative effects to a variety of resources. FS 36-39. These included retaining large-diameter trees and snags as well as imposing seasonal restrictions to avoid disturbing any NSO nests. FS 36-37.

         B. The NSO

         The Project area spans 8, 378 acres, of which approximately 1, 674 acres are in NSO habitat managed pursuant to the NWFP. FS 24 (land management direction map of Project area); FS 496. Within the NWFP-managed lands, “only plantations and stands within the FMZ would be treated.” FS 34. Outside of those lands, stands with suitable NSO habitat would generally be treated to maintain that habitat. Id. “Treatments that would not maintain suitable habitat would occur in areas distant from the NSO home ranges, in critical parts of the [wildland urban interface] (alongside transmission lines), entirely surrounded by plantations, or within the [FMZ].” Id.

         The Forest Service prepared a biological assessment (“BA”) and determined that the Project “may affect, and is likely to adversely affect the northern spotted owl.” FS 526; see also FS 516-26 (effects analysis). The BA indicated that Project activities will be “focused outside of the home range and outside of suitable NSO habitat” and that all of the “available nesting and roosting habitat within the action area” would be retained. Id. Nevertheless, the BA determined that the Project would have some short- and long-term effects on the quantity and quality of foraging and dispersal habitat.[7] Id. As noted in the BA, however, “the majority of those impacts are designed to be short-term and result in long-term benefits, through reducing high intensity wildland fire risk.” Id. Indeed, the Project is needed to meet “the recovery objectives and criteria identified in the final revised recovery plan for the NSO, ” which acknowledges that “[s]hort-term local impacts on [NSO] habitat are acceptable and at times expected, in order to strategically achieve the long-term goal of creating a more sustainable, resilient landscape.” FS 492-93; see also FS 444 (noting Project consistent with 2011 Revised Recovery Plan for the Northern Spotted Owl).

         The BA's likely-to-adversely-affect finding triggered formal consultation with FWS under the ESA. See 16 U.S.C. § 1536(a)(2). FWS prepared a BiOp that determined “the survival and recovery of the northern spotted owl are not in jeopardy as a result of implementation of the Lava Project.” FS 358. The BiOp identified two NSO activity centers: Border Mountain 1 and Border Mountain 2. FS 412-14. Before Project implementation, both activity centers were “below threshold values for the amount of nesting/roosting and foraging habitats at both the core area and home range scales, ” and nesting had “only been documented at the Border Mountain 2 site.” FS 435-36. The BiOp determined that Project activities within the NSO activity centers would have “[s]ignificant negative effects to northern spotted owls potentially occupying” those activity centers by altering their ability “to breed, feed, and shelter within the action area.” FS 437.[8] The BiOp, however, recognized the forest-health benefits of the Project and concluded that “[a]lthough there will be short and long term negative effects to northern spotted owl habitat, the proposed action will help sustain northern spotted owl habitat over the long term.” Id.

         Consistent with this conclusion, the BiOp noted that “[n]orthern spotted owls are expected to continue to be well distributed across the Province and the recovery unit after implementation of the [Project], ” and “changes to population trends and distributions are not expected as a result of adverse effects from the [Project] and will not preclude recovery of the species.” FS 441-42. Similarly, across the range of the NSO, “the proposed action would not result in removal, downgrade, or degrade of nesting/roosting habitat, ” and the foraging and dispersal habitat that will be treated within the Project area “represents less than 0.1 percent of the habitat available range-wide.” FS 442. As a result, the BiOp concluded that the “[p]otential short-term negative effects to two northern spotted owl activity centers in the action area due to Lava Project implementation are not expected to appreciably diminish survival of the species across its range.” Id. Moreover, the BiOp noted the “long-term benefits of the proposed action including improved forest health, reduced risk and severity of wildfire, and reduced risk of insect and disease outbreaks will contribute to the maintenance and promotion of well-distributed habitat across the range of the species.” Id.

         The BA prepared by the Forest Service also determined that the Project “may affect, but is not likely to adversely affect northern spotted owl critical habitat.” FS 530. The BA noted that the Project area is located within NSO critical habitat subunit 3 of the East Cascades South Unit (“ECS”) and that ECS subunit 3 covers 112, 179 acres of which only 1, 626 (less than 2 percent) are in the Project area. FS 526-27. The BA indicated that the treatments would not directly affect nesting/roosting or foraging habitat and that dispersal habitat would be maintained. FS 529-31. The Forest Service submitted its BA to FWS as part of ESA Section 7 informal consultation on the NSO critical habitat.

         FWS issued a letter concurring with the Forest Service's “not likely to adversely affect” conclusion, determining that the Project “will not result in the destruction or adverse modification of [NSO] critical habitat.” FS352-54. FWS explained that, of the primary constituent elements (“PCEs”)[9] of NSO critical habitat, neither nesting/roosting nor foraging habitat would be directly affected. FS 352. FWS evaluated impacts to the affected critical habitat and found that implementation of the FMZ treatment would remove six acres of dispersal habitat. FS 353. FWS determined that an additional thirty-three acres of dispersal habitat not associated with the FMZ would be degraded but would be maintained as dispersal habitat function after treatment. Id. Given these considerations, FWS found that the implementation of the FMZ treatment would not result in any significant direct effects to NSO critical habitat because the proposed removal of dispersal habitat was “insignificant due to the very small number of acres affected.” FS 353.

         Ultimately, FWS opined that, in its expert judgment, the Project “will not result in the destruction or adverse modification of critical habitat for the northern spotted owl as there will be no significant effects to critical habitat and critical habitat conservation functions will be maintained.” FS 354. As a result, FWS concurred with the Forest Service's finding in the BA. Id.

         C. The Gray Wolf

         In addition to the NSO, the BA considered eleven other species that were “known to occur or with the potential to occur” within the Project area. Table 1 summarized the effects of the Project on these species and included the following analysis relating to the gray wolf:

The gray wolf is listed as endangered in portions of Washington, Oregon, and all of California (73 FR 10514). One radio-collared wolf (OR-7) is known to have dispersed from northeastern Oregon through portions of Modoc and Siskiyou Counties. OR-7 has spent time near the project area, but due to its transience is not expected to be impacted by the proposed action. It is my determination that the Lava Hazardous Fuels Reduction Project will have no effect on the gray wolf.

FS 488. Because the BA determined that the Project would have “no effect” on the gray wolf, it was not addressed in the BiOp. FS 351.

         In August 2015, after the issuance of the BA and the BiOp, FWS notified the Forest Service of two separate instances of wolf activity near the Project area. The first was the detection of a lone wolf in Siskiyou County, California, approximately 20-30 miles from the Project area. FS 286. The second was the detection of a wolf pack- later named the Shasta Pack-also about 20-30 miles from the Project area. Id.

         On August 22, 2016, the Forest Service prepared a memo (the “Wolf Memo”) addressing “an increasing body of knowledge regarding the presence of the gray wolf in northern California and the potential of the . . . [Lava Project] to affect the species.” Id. In summary, the Wolf Memo emphasized that “no wolves have been detected within or near the Lava Project area. Furthermore, given the most recent detections of individual wolves and the Shasta Pack, there is no reason to believe that wolves are or will be using the Lava Project area for denning, gathering, or foraging.” FS 287.

         The Wolf Memo explained that, of the wolves detected in California, the wolves in the Shasta Pack were closest to the Project area, about 20-30 miles away based on the last detection. FS 287. It further noted that Shasta Pack members were unlikely to travel into the Project area because pack members tend to stay close to their homesites, and that a radius of 1.5 miles around pack homesites was a sufficient minimum buffer zone to protect wolves. FS 287-88. With regard to lone wolves, the Wolf Memo explained that while individual wolves travel farther than pack members, all of the lone wolves previously detected in California had last been detected in Oregon. FS 288. Additionally, the Wolf Memo noted that “there is no reason to believe that wolves will be drawn to the Project area based on any unique habitat attributes.” Id. Based on this analysis, the Wolf Memo concluded that there was no expectation that wolves will use the Project area, and that “the Project should have no effect on individual wolves or the species as a whole.” Id.

         The Wolf Memo also analyzed the impact of Project activities on wolf habitat and noted that the vegetation management activities proposed by the Project would not degrade or destroy wolf habitat. FS 288. Thus, even if a wolf wandered into the Project area in the future, habitat quality would not be altered by Project activities. Id. Based on ...


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