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Conservation Congress v. United States Forest Service

United States District Court, E.D. California

September 17, 2019





         Plaintiff 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 Judgment.[1]


         A. National Environmental Policy Act

         The 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).

         While 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. at 993.

         B. National Forest Management Act

         The 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).

         “After 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.

         C. The Modoc Land and Resource Management Plan

         The 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.

         The Big 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 10329–30.

         D. The Cove Fire Salvage and Restoration Project

         In July 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.

         The 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.

         E. Procedural Posture

         Conservation 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.

         Conservation 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.


         Courts 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).

         Judicial 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)).

         Agencies 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).

         IV. OPINION

         A. Evidentiary Objections

         Section 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).

         There 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.”).

         1. Plaintiff’s Request for Judicial Notice

         Conservation 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.

         “A 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).

         The 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.

         The 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).

         Finally, 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.

         Conservation Congress’s RJN is granted as to page 8 of Exhibit 1 and denied as to all other exhibits.

         2. Defendant’s Motion to Strike

         The 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.

         The 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 approval.

         For the 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 Exs. 1-12.

         3. Plaintiff’s Motion to Strike

         Conservation 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.

         The 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 necessary.

         The Court grants Plaintiff’s Motion to Strike and excludes the identified portions of Christofferson’s Supplemental Declaration.

         B. Cross-Motions for Summary Judgment

         1. Standing

         To 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.

         “An 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.” Id.

         Conservation 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.

         Some of 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.

         The 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.

         Cases 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.

         2. Claim I: Notice of Environmental Review Documents and Bidding Sale

         In its 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. ΒΆ 113. ...

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