United States District Court, E.D. California
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
A. MENDEZ, UNITED STATES DISTRICT JUDGE.
Conservation Congress sued Defendant United States Forest
Service (“the Forest Service”) after the Forest
Service approved the Cove Fire Salvage and Restoration
Project (the “Project”). Presently before the
Court are cross-motions for summary judgment, a request for
judicial notice, and two motions to strike. For the reasons
set forth below, the Court GRANTS IN PART and DENIES IN PART
Plaintiff’s Request for Judicial Notice, GRANTS
Defendant’s Motion to Strike, GRANTS Plaintiff’s
Motion to Strike, DENIES Plaintiff’s Motion for Summary
Judgment, and GRANTS Defendant’s Motion for Summary
STATUTORY AND FACTUAL BACKGROUND
National Environmental Policy Act
National Environmental Policy Act (NEPA) “is a
procedural statute that requires the federal government to
carefully consider the impacts of and alternatives to major
environmental decisions.” Native Ecosystems Council
v. Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012) (citing
42 U.S.C. §§ 4321, 4331). NEPA requires that
federal agencies take a “hard look” at the
environmental consequences of their proposed actions and then
inform the public about the agency’s decision-making
process. Kern v. U.S. Bureau of Land Mgmt., 284 F.3d
1062, 1066 (9th Cir. 2002).
agencies must carefully consider significant environmental
impacts through the NEPA process, they are “not
required to do the impractical.” Klamath-Siskiyou
Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989,
992–93 (9th Cir. 2004) (internal citations,
alterations, and quotation marks omitted). “Although an
agency's actions under NEPA are subject to careful
judicial scrutiny, courts must also be mindful to defer to
agency expertise, particularly with respect to scientific
matters within the purview of the agency.” Id.
National Forest Management Act
National Forest Management Act (NFMA) “charges the
Forest Service with the management of national forest land,
including planning for the protection and use of the land and
its natural resources.” All. for the Wild Rockies
v. United States Forest Serv., 907 F.3d 1105, 1109 (9th
Cir. 2018). The Forest Service develops land and resource
management plans (“forest plans”), 16 U.S.C.
§ 1604, that summarize the “broad, long-term plans
and objectives for the entire forest.” Weldon, 697 F.3d
at 1056. Forest plans include guidelines to help achieve the
NFMA’s goals, including consideration of both economic
and environmental concerns, preservation of diversity in
plant and animal communities, and research on the effects of
forest management. 16 U.S.C. § 1604(g)(3).
a forest plan is approved, the Forest Service implements the
forest plan when approving or denying site-specific
projects.” Weldon, 697 F.3d at 1056. Courts
must defer to the Forest Service’s reasonable
interpretation of its own guidelines, overturning the
agency’s decision only if it is plainly erroneous or
inconsistent with the forest plan. Forest Guardians v.
U.S. Forest Serv., 329 F.3d 1089, 1098 (9th Cir. 2003).
“A project is consistent if it conforms to the
applicable ‘components’ of the forest plan,
including the standards, guidelines, and desired conditions
that are set forth in the forest plan and that collectively
establish the details of forest management.” All. for
the Wild Rockies, 907 F.3d at 1109–10.
Although a forest plan’s “standards”
require strict adherence, the Forest Service may deviate from
the plan’s “guidelines” if the agency
documents the rationale for the deviation. Id.
Modoc Land and Resource Management Plan
Forest Service adopted the Modoc National Forest Land and
Resource Management Plan (“Modoc LRMP”) in 1991,
Admin. R. (“AR”) 10331–10402, which governs
management of the Modoc National Forest. In 2004, the Forest
Service incorporated the Sierra Nevada Forest Plan Amendment
(SNFPA)’s management direction, AR 10119–94, into
the existing Modoc LRMP, AR 10136. The changes adopted in
SNFPA do not apply to certain plans and projects, including
the Big Valley Federal Sustained Yield Unit (“the Big
Valley Unit”). Id.
Valley Unit aims to “provide the maximum feasible
permanent support to the Big Valley community from the timber
industry” by employing local residents to harvest
timber and manufacturing timber products within the unit. AR
Cove Fire Salvage and Restoration Project
2017, the Cove Fire burned over 30, 000 acres of grass,
brush, and timberlands. AR 1. Over half of the National
Forest Service lands impacted by the fire experienced high to
very high burn severity. AR 45. Following the Cove Fire, the
Forest Service designed and implemented the Project to
recover the economic value of killed or damaged trees; reduce
safety hazards along roads; improve the forest’s
ability to withstand future wildfires; and accelerate habitat
development in areas deforested by the fire. AR 46. All
Project activities are within the boundaries of the Cove
Fire, in the Big Valley Ranger District of the Modoc National
Forest and within the Big Valley Unit. AR 43. Although the
Project is exempt from the SNFPA because it is within the Big
Valley Unit, the Project incorporated goals from the SNFPA in
addition to the Standards and Guidelines from the Modoc LRMP.
Forest Service issued a Decision Notice and Finding of No.
Significant Impact (“FONSI”) on July 12, 2018. AR
1–9. Based on review of the record, including the
Environmental Assessment, AR 35–122, and public
comments, AR 10584–10643, the Forest Service decided to
implement the Project. AR 2. The Forest Service approved the
Project under an Emergency Situation Determination
(“ESD”), AR 10–11, which allows project
implementation without being subject to the predecisional
objection process. 36 C.F.R. § 218.21(d). As of March
2019, 67% of the sawlog volume authorized for removal under
the Project had been scaled and hauled to mills. Def.’s
Status Report, ECF No. 69.
Congress filed suit on August 31, 2018. Compl., ECF No. 1. A
month later, the organization filed a Motion for Preliminary
Injunction, ECF No. 11, to enjoin the Project’s
implementation. Following the Court’s denial of the
Motion for a Preliminary Injunction, ECF No. 26, Conservation
Congress appealed and sought an injunction pending appeal,
ECF No. 28. The Court denied an injunction pending appeal,
ECF No. 43, and granted Conservation Congress’s motion
to amend the complaint, ECF No. 47. The Ninth Circuit
affirmed the Court’s denial of a preliminary injunction
on May 21, 2019. Mem. Order, ECF No. 80.
Congress filed its First Amended Complaint, containing nine
claims, on December 19, 2018. Am. Compl., ECF No. 48. In
April 2019, Conservation Congress filed its Motion for
Summary Judgment, Pl.’s Mot. Summ. J., ECF No. 75;
Pl.’s Mem. in Supp. of Mot. Summ. J.
(“Pl.’s Mem.”), ECF No. 75-1, and a Request
for Judicial Notice, Req. Judicial Notice
(“RJN”), ECF No. 74. The Forest Service filed its
Motion for Summary Judgment on May 31, 2019, Def.’s
Mot. Summ. J, ECF No. 82; Def.’s Mem. in Supp. of Mot.
Summ. J. (“Def.’s Mem.”), ECF No. 82-1;
moved to strike portions of Conservation Congress’s
declarations, Def.’s Mot. Strike, ECF No. 83; and
opposed the request for judicial notice, RJN Opp., ECF No.
85. Conservation Congress then moved to strike portions of a
declaration filed by the Forest Service, Pl.’s Mot.
Strike, ECF No. 87, in response to the Forest Service’s
opposition to its Request for Judicial Notice.
STANDARD OF REVIEW
review alleged violations of the NFMA and NEPA under the
Administrative Procedure Act (APA). All. for the Wild
Rockies, 907 F.3d at 1112. The APA directs reviewing
courts to “hold unlawful and set aside agency action,
findings, and conclusions found to be . . . arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).
review under the “arbitrary and capricious”
standard is narrow and deferential. Motor Vehicle Mfrs.
Assn of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983). A court may not “substitute its
judgment for that of the agency.” Id.
“This deference is highest when reviewing an
agency’s technical analyses and judgments involving the
evaluation of complex scientific data within the
agency’s technical expertise.” League Of
Wilderness Defs. Blue Mountains Biodiversity Project v.
Allen, 615 F.3d 1122, 1130 (9th Cir. 2010) (citing
Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir.
2008) (en banc), overruled on other grounds by Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)).
are required to “examine the relevant data and
articulate a satisfactory explanation for its action.”
Turtle Island Restoration Network v. U.S. Dep’t of
Commerce, 878 F.3d 725, 732 (9th Cir. 2017) (internal
quotation marks and citation omitted). An action is arbitrary
and capricious where “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 if the agency’s
decision is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.”
Turtle Island, 878 F.3d at 732–33 (internal
quotation marks and citation omitted).
706 of the APA provides for judicial review of federal
administrative actions based upon “the whole record or
those parts of it cited by the party.” 5 U.S.C. §
706. Thus, APA review is generally limited to the
administrative record before the agency at the time it made
the decision. Citizens to Pres. Overton Park, Inc. v.
Volpe, 401 U.S. 402, 420 (1971); Lands Council v.
Powell, 395 F.3d 1019, 1029 (9th Cir. 2005).
are, however, narrow exceptions to this general rule. Powell,
395 F.3d at 1030. “In limited circumstances, district
courts are permitted to admit extra-record evidence: (1) if
admission is necessary to determine whether the agency has
considered all relevant factors and has explained its
decision, (2) if the agency has relied on documents not in
the record, (3) when supplementing the record is necessary to
explain technical terms or complex subject matter, or (4)
when plaintiffs make a showing of agency bad faith.”
Id. (internal quotation marks omitted). Courts
narrowly construe and apply these exceptions. Id.
(“Were the federal courts routinely or liberally to
admit new evidence when reviewing agency decisions, it would
be obvious that the federal courts would be proceeding, in
effect, de novo rather than with the proper deference to
agency processes, expertise, and decision-making.”).
Plaintiff’s Request for Judicial Notice
Congress requests that the Court take judicial notice of
seven exhibits pursuant to Federal Rule of Evidence 201. RJN
at 1–4. Those exhibits are (1) the Modoc National
Forest, Schedule of Proposed Action (SOPA) for January 1,
2018 to March 31, 2018 and April 1, 2018 to June 30, 2018,
ECF No. 74-2; (2) a printout of the Project webpage, dated
April 4, 2019, ECF No. 74-3; (3) a printout of the Modoc
National Forest’s advertised timber sales, dated March
14, 2019, ECF No. 74-4; (4) a Report of Timber Sale, dated
July 26, 2018, ECF No. 74-5; (5) a Forest Service press
release lifting fire-area closure orders, dated September 5,
2017, ECF No. 74-6; (6) a Request for Bid by the Pit Resource
Conservation District, issued July 12, 2018, ECF No. 74-7;
and (7) a Request for Bid Response Packet from Tubit
Enterprises, dated July 20, 2018, ECF No. 74-8. The Forest
Service opposes the RJN with respect to most of the exhibits,
arguing that the documents were either post-decisional or not
otherwise before the agency at the time of the
Project’s approval. RJN Opp’n at 2.
judicially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” Fed.R.Evid.
201(b). “A court shall take judicial notice if
requested by a party and supplied with the necessary
information.” Fed.R.Evid. 201(d).
Forest Service does not oppose the April to June 2018 SOPA,
which lists the Cove Project and is a pre-decisional record.
Id. at 5 n.3. Accordingly, the Court will take
judicial notice of the page of Exhibit 1 that lists the
Project, ECF No. 74-2, p. 8. The other portions of Exhibit 1
are not relevant, and the Court will not consider them.
Court denies Conservation Congress’s RJN as to the six
other exhibits because they are either inappropriate for
judicial notice under Federal Rule of Evidence 201 and/or
irrelevant under Rule 401. Exhibit 2 of the RJN is already
part of the record. AR 10645. Exhibits 3, 4, and 7 are
post-decisional documents, which the agency could not have
relied upon at the time of the decision. Much like how
agencies may not supply post-hoc rationalizations for their
actions, “post-decision information . . . may not be
advanced as a new rationalization either for sustaining or
attacking an agency’s decision.” San Luis
& Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581,
603 (9th Cir. 2014).
Exhibit 5 and Exhibit 6 both fail the narrow criteria for
admission of extra record evidence. Exhibit 5, which states
that road closures are lifted and warns of continued danger
due to wildfire, was not relied upon by the Forest Service in
approving the Project. Exhibit 6 is a record from a different
entity that similarly was not relied upon in the Forest
Service’s approval of the Project. There are no
allegations of bad faith or technical subject matter that
Exhibits 5 and 6 could explain, and the exhibits’ are
not necessary to determine if the Forest Service considered
relevant factors in its decision.
Congress’s RJN is granted as to page 8 of Exhibit 1 and
denied as to all other exhibits.
Defendant’s Motion to Strike
Forest Service moves to strike portions of Conservation
Congress’s Declarations, ECF Nos. 65–68, 73, 77,
79, on the grounds that the declarations go beyond standing
assertions and improperly include legal argument and
extra-record photos and documents. Def.’s Mot. Strike,
ECF No. 83. Conservation Congress opposes the motion, arguing
that the declarations were submitted for the sole purpose of
establishing the standing of Conservation Congress and its
members. Pl.’s Opp’n Strike, ECF No. 85, p. 4.
Court agrees with the Forest Service that portions of
Conservation Congress’s declarations exceed the
permissible boundaries of establishing standing. The
declarations contain legal conclusions about the
arbitrariness or capriciousness of agency actions,
extra-record information and photos not considered by the
agency, and disputes about the scientific methodology
employed by the agency in evaluating species’ habitat
needs. Such information is not relevant to the members’
standing and will not be considered by the Court. The Forest
Service does not dispute that Conservation Congress and its
members have standing to challenge the Project’s
reasons articulated in the Forest Service’s motion and
reply, the Court will strike the following portions of the
declarations that are irrelevant to Conservation
Congress’s standing: Declaration of Lyle Lewis, ECF No.
65 ¶¶ 9, 11-20, 23-30; Declaration of Denise Boggs
ECF No. 66 ¶¶ 21-105 and Exs. 1-5; Declaration of
Douglas Bevington ECF No. 67 ¶¶ 14, 16, 23-26 and
Ex. 1; Declaration of Chad Hanson, ECF No. 68 ¶¶
9-11, 15-19 and Ex. 2; Original Declaration of Kyle Haines,
ECF No. 73 ¶¶ 21-25, 27-30, 32-33, 39; Unsigned
Supplemental Declaration of Kyle Haines, ECF No. 77
¶¶ 1-10 and Exs. 1-12; Signed Supplemental
Declaration of Kyle Haines, ECF No. 79 ¶¶ 1-10 and
Plaintiff’s Motion to Strike
Congress moves to strike portions of the Supplemental
Declaration of Chris Christofferson, ECF No. 82-2, for
offering post-decisional rationalizations, legal conclusions,
and statements unsupported by the administrative record.
Pl.’s Mot. Strike, ECF No. 87, p. 2. Conservation
Congress argues that it would be prejudiced should the Court
deny its RJN but allow the Forest Service to rely on
Christofferson’s Supplemental Declaration. Id.
It seeks to exclude the following paragraphs from
Christofferson’s Supplemental Declaration: ¶¶
3, 5, 7, 11–23.
Court has reviewed Christofferson’s Supplemental
Declaration and does not find admission of the extra-record
facts within it are necessary to determine whether the agency
has considered all relevant factors and explained its
decision. See Powell, 395 F.3d at 1030. As the Court will not
be considering post-decisional arguments as a basis upon
which to challenge the agency’s decision, admission of
Christofferson’s post-decisional explanations is not
Court grants Plaintiff’s Motion to Strike and excludes
the identified portions of Christofferson’s
Cross-Motions for Summary Judgment
fulfil the case-or-controversy requirement of Article III, a
plaintiff must satisfy three elements of standing. Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). First,
the plaintiff must have suffered an “injury in fact,
” which is concrete and particularized, as well as
actual and imminent. Id. Second, the injury must be
caused by the defendant’s conduct, such that it can be
fairly traced to the challenged action. Id. Third,
it must be likely that a favorable decision will redress the
injury. Id. at 561.
organization has standing to bring suit on behalf of its
members when: (a) its members would otherwise have standing
to sue in their own right; (b) the interests it seeks to
protect are germane to the organization’s purposes; and
(c) neither the claim asserted nor the relief requested
requires the participation of individual members in the
lawsuit.” Ecological Rights Found. v. Pac. Lumber Co.,
230 F.3d 1141, 1147 (9th Cir. 2000) (internal quotation marks
omitted). A plaintiff satisfies the “injury in
fact” in an environmental case where an individual
shows “an aesthetic or recreational interest in a
particular place, or animal, or plant species and that that
interest is impaired by a defendant’s conduct.”
Congress’s declarations are sufficient to demonstrate
standing on most of its claims. The organization’s
members have a protected interest in the area of the Modoc
forest where the Project is taking place, and that the
Project, a final agency action, may impair their interests.
The Court has not considered the stricken portions of the
declarations in arriving at that conclusion.
Conservation Congress’s claims expand beyond the
grounds upon which the organization has standing. The Forest
Service has challenged Conservation Congress’s standing
on its appraisal and contract modification arguments, which
appear to be part of its seventh and ninth claims.
Def.’s Mem. at 26. The Forest Service argues that
Conservation Congress may not challenge the sales agreement
on several grounds, including that the organization lacks a
personal injury because it was not a bidder and because the
contract is not a final agency action reviewable under the
APA. Id. at 26–28.
most factually analogous case is Alliance for the Wild
Rockies v. Pena, No. 2:16-CV-294-RMP, 2018 WL 4760503
(E.D. Wash. Oct. 2, 2018), cited by the Forest Service. In
Pena, an environmental organization challenged the Forest
Service’s bidding contract and contract award on a
logging project under the NFMA and NEPA. Id. at
*3–6. The district court held that the organization
lacked standing because it did not suffer an injury-in-fact
and lacked a procedural right to challenge the bidding
process. Id. Conservation Congress has not provided
any contrasting precedent or statutory support for their
standing argument on these issues.
challenging Forest Service timber appraisals and sale
contracts been brought by bidders pleading an injury from the
alleged irregularity. See, e.g., Capital Dev. Co. v.
United States, 49 Fed.Cl. 178 (2001), aff’d sub
nom. Seaboard Lumber Co. v. United States, 308 F.3d
1283 (Fed. Cir. 2002) (denying a timber purchaser’s
challenge to the Forest Service’s appraisal method);
Roseburg Lumber Co. v. Madigan, 978 F.2d 660(Fed.
Cir. 1992) (affirming a decision of the United States
Department of Agriculture Board of Contract Appeals that
disputed the accuracy of timber appraisal); Prineville
Sawmill Co. v. United States, 859 F.2d 905 (Fed. Cir.
1988) (reversing a decision of the United States Claims Court
in a pre-award bid protest action against the Forest Service
regarding sale of salvage timber). Conservation Congress has
not shown such an injury or procedural right, and accordingly
it lacks standing to challenge the Forest Service’s
appraisal of the Project value and its stewardship agreement
with the Pit River Conservation District.
Claim I: Notice of Environmental Review Documents and Bidding
first claim, Conservation Congress alleges that the Forest
Service violated NEPA and the APA by failing to follow the
regulations regarding public notification of timber sales and
environmental review documents. Am. Compl. at 23 ¶¶
110–17. First, it alleges that the Forest Service
advertised for less than seven days about the emergency
removal of timber, in violation of 36 C.F.R. § 223.81.
Am. Compl. at 23 ¶ 111. Second, it alleges that the
Forest Service failed to advertise its timber sale contracts
for at least 30 days, in violation of 36 C.F.R. §
223.302 and § 223.80. Id. ¶ 113. ...