Opinion
No. 2:14-CV-02228-GEB-AC
03-20-2015
CONSERVATION CONGRESS, a non-profit organization, Plaintiff, v. UNITED STATES FOREST SERVICE, Defendant.
ORDER GRANTING DEFENDANT'S SUMMARY JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY JUDGMENT MOTION
Plaintiff Conservation Congress and Defendant United States Forest Service ("Forest Service") each move for summary judgment on all claims in Plaintiff's Complaint. The County of Siskiyou filed an amicus curiae brief in support of the Forest Service's motion.
Plaintiff alleges in its Complaint that the Forest Service's decision authorizing the Environmental Assessment ("EA") and Finding of No Significant Impact ("FONSI") for the Porcupine Vegetation and Road Management Project ("the Project") violated the National Environmental Policy Act ("NEPA") and the National Forest Management Act ("NFMA"). The Forest Service identified the purposes of the Project as (1) improving forest health by thinning trees, thereby reducing fuels that pose a risk of igniting a catastrophic fire in the Shasta-Trinity National Forest ("the Forest"), (2) maintaining a fuel break, and (3) restoring meadow and aspen habitat. (Project Administrative Record ("PAR") 1, 4, 370, ECF No. 11.) "The project area is located near Porcupine Butte approximately 20 miles northeast of McCloud," California. (PAR 1.)
I. LEGAL STANDARD
"Agency decisions that allegedly violate . . . NEPA and NFMA are reviewed under the Administrative Procedure Act ('APA'), and may be set aside only if they are 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.'" Or. Natural Res. Council Fund v. Goodman, 505 F.3d 884, 889 (9th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A)). Agency action is arbitrary or capricious if it fails to "examine the relevant data and articulate a satisfactory explanation for [the] action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983). Judicial "[r]eview under this standard is to be 'searching and careful,' but remains 'narrow,' and a court is not to substitute its judgment for that of the agency. This is especially appropriate where . . . the challenged decision implicates substantial agency expertise." Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir. 1993).
A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies its "initial burden," "the nonmoving party must set forth, by affidavit or as otherwise provided in Fed. Rule Civ. Proc. ("Rule") 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting former Rule 56(e)).
Because a district court has no independent duty "to scour the record in search of a genuine issue of triable fact," and may "rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment," . . . the district court . . . [is] under no obligation to undertake a cumbersome review of the record on the [nonmoving party's] behalf.Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010) (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996)).
II. REQUEST TO SUPPLEMENT THE ADMINISTRATIVE RECORD
Plaintiff seeks in its reply brief to supplement the Project Administrative Record ("PAR") by having judicial notice taken of the Forest Service's Annual Progress Report. (Pl.'s Reply Supp. Summ. J. ("Pl. Reply") 2 n.1, ECF No. 31.) However, the district court need not consider a request made for the first time in a reply brief. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007).
"Generally, judicial review of agency action is limited to review of the administrative record." Animal Def. Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988). The administrative record may be supplemented only:
(1) if necessary to determine "whether the agency has considered all relevant factors and has explained its decision," (2) "when the agency has relied on documents not in the record,' [] (3) "when supplementing the record is necessary to explain technical terms of complex subject matter," . . . . [or] [4] "when plaintiffs make a showing of agency bad faith."S.W. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996) (quoting Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 703-04 (9th Cir. 1996)). Plaintiff's request is untimely and does not address the relevant legal standard. Therefore, Plaintiff's request to supplement the administrative record is denied.
III. DISCUSSION
Plaintiff alleges in its Complaint that the Forest Service violated NEPA by (1) conducting an arbitrary and capricious cumulative effects analysis on the northern spotted owl, (2) failing to consider a reasonable range of alternatives to the Project, (3) failing to take a "hard look" at the environmental impacts of the Project, and (4) failing to prepare an Environmental Impact Statement ("EIS"); and that the Forest Service violated the NFMA by failing to comply with the Forest Plan's snag retention standard.
A. Cumulative Impacts of Future Projects
Plaintiff alleges in its Complaint that the Forest Service used an inappropriately narrow geographic boundary for its cumulative impacts analysis to assess the Project's impact on the northern spotted owl. (Compl. ¶¶ 46-47.) Plaintiff argues the narrowness of this analysis fails to comply with the Council on Environmental Quality ("CEQ") guidelines that require analyzing the Project's effects using the largest area occupied by the owls, which in this case is the owl's natal dispersal distance of 10 to 15 miles, and that the Forest Service abused its discretion when only analyzing the Project's impact using the owls 1.3 mile median home range. (Pl.'s Am. Mot. Summ. J. ("Pl. Mot.") 12:23-13:9; 13:15-25; 14:24-26, ECF No. 20.)
NEPA requires that an agency's assessment of the environmental impacts of a proposed Project include an analysis of the action's cumulative impact. Ctr. for Envtl. Law & Policy v. U.S. Bureau of Reclamation, 655 F.3d 1000, 1007 (9th Cir. 2011). NEPA regulation 40 C.F.R. § 1508.7 defines cumulative impact as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions . . . . Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." "[S]ometimes the total impact from a set of [projects]... may be greater than the sum of the parts." Goodman, 505 F.3d at 893. The CEQ publishes guidelines instructing federal agencies how to define the geographic boundaries of a cumulative effects analysis; the guidelines explain: "[a]nalyzing cumulative effects . . . requires the analyst to expand the geographic boundaries [of the analysis] . . . to encompass additional effects on the resources, ecosystems, and human communities of concern" beyond the Project area. (Malone Decl. Ex. A, p. 21, ECF No. 16.) "CEQ's interpretation of NEPA is entitled to substantial deference." Andrus v. Sierra Club, 442 U.S. 347, 358 (1979). The portion of the guidelines relevant to Plaintiff's claim states: "[f]or a proposed action . . . the analysts should . . . [d]etermine the geographic areas occupied by [the northern spotted owl] . . . . [i]n most cases, the largest of the[] areas [occupied by the owl] will be the appropriate area for the analysis of cumulative effects."(Malone Decl. Ex. A, p. 21, 24)(emphasis added.)
The Forest Service's cumulative effects analysis "includes the effects from habitat modification within an owl's home range, which is an estimated 1.3-mile radius around an activity center (e.g., nest site) or approximately 3,400 acres." (PAR 1291)(emphasis added.)
The Forest Service explains its analysis is "scientifically valid" and consistent with the CEQ guidelines since the owl's natal dispersal distance does not represent the "geographic area [they] occup[y]" but instead "represents the transient/movement phase of young owls . . . en route to establishing new permanent territory." (Fed. Def.'s Mem. Opp'n Pl.'s Mot. Summ. J. ("Def. Opp'n") 2:2-4; 5:4-15, ECF No. 24.)
Further, the Forest Service states in the administrative record, in relevant part:
The 1.3-mile bounding on the assessment area . . . allows for analysis of . . . adjacent territories, is an accepted range by the [Fish and Wildlife Service] for completing [northern spotted owl] effects analysis and includes managed private timberlands that may influence [northern spotted owl] habitat use within the project assessment area. The Action Area is approximately 88,657 acres. Although there is only one known [northern spotted owl] activity center and home range in the Action Area . . ., the 1.3-mile buffer area was still assessed to account for any future overlapping activity centers, or partial/entire cores or home ranges(s).(PAR 12 91.)
"The Forest Service's choice of home range as the physical scope for cumulative effects analysis was not arbitrary or capricious," and there is no evidence indicating that the CEQ guidelines consider the natal dispersal distance a better scope of analysis. Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 974 (9th Cir. 2002)); see also Conservation Congress v. U.S. Forest Serv., 555 F. Supp. 2d 1093, 1108-09 (E.D. Cal. 2008) (approving of cumulative effects analysis that used the northern spotted owl's home range).
Therefore, the Forest Service's motion on this claim is granted and Plaintiff's motion is denied.
B. Failing to Consider a Reasonable Range of Alternatives
Plaintiff argues the Forest Service violated NEPA by failing to consider a reasonable range of alternatives to the Project in its EA. (Compl. ¶¶ 53-56.)
Before approving a proposed action, NEPA requires the Forest Service to "study, develop, and describe appropriate alternatives." 42 U.S.C. § 4332(2)(E). "[A]n agency's obligation to consider alternatives under an EA is a lesser one than under an EIS." Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 915 (9th Cir. 2012). "Where with an EIS, an agency is required to 'rigorously explore and objectively evaluate all reasonable alternatives,' with an EA, an agency is only required to include a brief discussion of reasonable alternatives." Id. at 915 (quoting N. Idaho Cnty. Action Network v. U.S. Dep't of Transp., 545 F.3d at 1153.) "The touchstone of [the] . . . inquiry is whether an [EA's] selection and discussion of alternatives fosters informed decision-making and informed public participation." Cal. v. Block, 690 F.2d 753, 767 (9th Cir. 1982). An agency is not required to consider alternatives "beyond those reasonably related to the purposes of the project." Westlands Water Dist. v. U.S. Dep't of Interior, 376 F.3d 853, 868 (9th Cir. 2004).
1. Alternative That Would Preclude Logging Trees Greater Than or Equal to 21-Inches in Diameter
The Forest Service considered "[a]n alternative that precludes the harvest of trees above . . . 21 inches" in diameter, but did "not consider[] [it] in detail because [the alternative] would not reasonably meet the [P]roject purpose and need." (PAR 99.) Plaintiff argues this conclusion was arbitrary or capricious since it was not supported by evidence and because the Forest Service unfairly considered the 21-inch alternative in combination with other more restrictive diameter-based alternatives. (Pl. Mot. 16:5-9; 18:16-20.)
The Forest Service responds it was not required to consider the 21 inch alternative in isolation and its analysis sufficiently explained why the alternative did not meet the Project's purpose of improving forest health, since it "would allow disease-infected . . . trees . . . to continue to infect adjacent young [trees]" and "would prevent the species-composition of mixed stands from shifting back to pine, leaving more stands vulnerable to wildfire." (Def. Opp'n 12:12-22.)
The Forest Service discussed the Project's goals in the PAR, specifically stating its objectives included "improve[ing] forest health and growth" and "reducing the risk of catastrophic fire." (PAR 4065-66, 370.)
When considering the 21-inch alternative, the Forest Service stated in part:
An alternative that precludes the harvest of trees above a set diameter (several upper limits were suggested, including 12, 18 and 21 inches) and larger was not considered in detail because it would not reasonably meet the project purpose and need . . . . An upper diameter limit that excludes overstory tree diameters would not be effective in accomplishing treatment objectives for the following reasons:(PAR 99.)
• High stocking levels include overstory trees and stocking could not be reduced to desired levels by limiting harvest to trees based solely on dbh [diameter at breast height].
• Disease-infected lodgepole pine overstory trees would continue to infect adjacent young lodgepole pine.
• The species composition of mixed stands . . . on dry, fire-maintained sites would not shift back to pine, leaving stands more vulnerable to wildfire.
• Aspen would remain overtopped and suppressed by conifers exceeding the diameter limit.
The Forest Service provided "satisfactory explanation[s]" for concluding Plaintiff's alternative would not further the Project's purposes of improving forest health and reducing the risk of catastrophic wildfire, by stating that Plaintiff's alternative would allow disease-infected trees to infect nearby trees, would not properly redistribute the species composition mix in dry areas, and would leave the forest open to catastrophic fires. Motor Vehicle Mfrs. Ass'n of U.S., Inc., 463 U.S. at 43; (see PAR 99.) These rationales apply to the 21-inch alternative regardless of whether it was considered alone or in combination with other diameter based logging restrictions. NEPA does not require the Forest Service to consider alternatives "beyond those reasonably related to the purposes of the project." Westlands Water Dist., 376 F.3d at 868. Therefore, the Forest Service's motion on this claim is granted and Plaintiff's motion is denied.
2. Alternative that Does Not Affect Northern Spotted Owl Habitat
Plaintiff argues that the Forest Service's conclusion that "an alternative that does not affect [northern spotted owl] habitat and specifically does not propose activity within critical, suitable (nesting, roosting, foraging) capable or dispersal habitat," "fail[ed] to adequately meet the major aspects of the purpose and need" of the Project is arbitrary or capricious since the Forest Service's reasoning is contradictory and inconsistent with prior Forest management decisions. (PAR 99, 100.)
a. Contradictory Reasoning
Plaintiff argues the Forest Service's stated reasons for dismissing the alternative that does not affect northern spotted owl habitat are inconsistent with each other and therefore arbitrary.
The Forest Service stated in the relevant part of its discussion of the alternative:
The predicted effects of [this alternative] (no treatment in critical, dispersal or suitable habitat) would be very similar in effects to [northern spotted owl] habitat under the action alternatives analyzed in
detail, as all treated critical foraging and dispersal habitat would continue to function as such in both the short- and long-term. . . The exception is that capable habitat would remain in its overstocked, stagnant condition. . . .(PAR 100) (emphasis added.)
This alternative fails to adequately meet the major aspects of the purpose and need and was eliminated from detailed study because:
• Inter-tree competition would not be alleviated within foraging and capable stands, and therefore the project would not meet the purpose and need in these areas of improving forest health and reducing fuels;
• Stand density indices would remain at 240 to 470 within 17 percent of the area proposed for treatment, continuing to result in poor tree health, reduced vigor, increased competition for nutrients, light and water, and leading to future disease and mortality increases within these adjacent healthy stands;
• It would result in increased stress induced mortality within suitable and capable habitat, with fewer large diameter trees and snags over time (based on growth modeling). . .
• It would not encourage or accelerate the development of resilient late-successional habitat within current suitable habitat, nor protect it from loss resulting from disease or fire.
NEPA does not require that the Forest Service consider alternatives "beyond those reasonably related to the purposes of the project." Westlands Water Dist., 376 F.3d at 868. Nor does it "require[] [the Forest Service] to undertake a separate analysis of alternatives which are not significantly distinguishable from alternatives actually considered, or which have substantially similar consequences." Id.
Plaintiff argues that when the Forest Service dismissed the alternative because it simultaneously did not meet the Project's purpose and was "very similar" to alternatives that met the Project's purpose, its analysis was internally inconsistent. (Pl. Mot. 24:18-27.)
The Forest Service responds that it "described several ways in which the proposed alternative would fail to adequately meet . . . the Project's purpose and need" and that "[w]hile the Forest Service recognized that the predicted effects of [other alternatives analyzed in detail] would be similar to the proposed alternative insofar as neither . . . would downgrade or remove northern spotted owl habitat," the similarities did not extend to the Project's purpose of promoting forest health. (Def. Opp'n 9:18-19; 10:20-21) (emphasis added).
The Forest Service provided a reasoned explanation for its conclusion that Plaintiff's alternative did not meet the Project's purpose of promoting forest health since it would not alleviate inter-tree stress, which causes stress-induced tree mortality. (PAR 99-100.) Its conclusion is reasonable even though the alternative was "very similar" to alternatives that met the Project's purpose and need, since their similarity only concerned their "effects to [northern spotted owl] habitat" and the Forest Service's reasons for determining Plaintiff's alternative did not meet the Project's purpose and need are unrelated to its effects on northern spotted owl habitat. (PAR 100.) For these reasons, NEPA did not require the Forest Service to consider the alternative in further detail. Westlands Water Dist., 376 F.3d at 868 (agency need not consider alternatives "beyond those reasonably related to the purposes of the project.").
Therefore, the Forest Service's motion on this claim is granted and Plaintiff's motion is denied.
b. Inconsistent Reasoning
Plaintiff argues that because the Forest Service decided at an earlier date not to log northern spotted owl habitat in other parts of the forest, it now cannot reject an alternative that would prevent logging in northern spotted owl habitat in the Project area. (Pl. Mot. 24:18-23; 22:22-24:5.) Specifically, Plaintiff argues the Forest Service previously considered logging northern spotted owl habitat in a part of the forest referred to as the Porcupine Late Successional Reserve ("LSR"), but ultimately decided against logging there and, as a result, the Forest Service cannot now log northern spotted owl habitat in the Project area without further explanation. (Pl. Mot. 24:2-5.)
The Forest Service contends Plaintiff's focus on the LSR is a red herring because of the geographic differences between the Project area and the LSR. (Fed. Def.'s Reply Supp. Def.'s Mot. Summ. J. ("Def. Reply") 7:15-18, ECF No. 30.)
"In order to balance environmental and economic needs, the [Forest Service] designates certain forest areas for logging and reserves other areas, called late successional reserves (LSRs), for conservation." League of Wilderness Defenders Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1125 (9th Cir. 2010). LSRs are designated areas of forest land that "lie at the heart of the [Forest Service's] ecosystem-based conservation strategy for the northern spotted owl." Or. Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1126 (9th Cir. 2007). "The . . . LSR [at issue] was established to maintain the few late-successional stands on the far eastern edge of the Shasta-Trinity National Forest and to help provide for connectivity of habitat for late-successional species, including the northern spotted owl." (PAR 274-275.)
The Forest Service previously considered, but decided against logging in the LSR in part because "several public commenters expressed concern." (PAR 61.) The Forest Service explained in its EA in relevant part:
Prior to the 2012 EA, a similar project that additionally included the Porcupine Late Successional Reserve (LSR) was considered in a 2009 EA (USDA-FS, 2009a) and decision. The 2009 decision was reversed on appeal. The Forest Supervisor opted to defer treatment units within the LSR in the Proposed Action in the 2012 EA and in this revision. No silvicultural or fuels treatments are included in the Porcupine LSR in alternatives considered in detail. While it is recognized that the original purpose and need for Action in the LSR is still valid, actions in the Porcupine LSR may be considered in a future proposal specific to the Porcupine LSR. Road actions in the LSR remain in the action alternatives of this revised analysis."(PAR 44 n.2.)
The location of northern spotted owl habitat in the LSR is geographically distinct from the location of northern spotted owl habitat in the Project area. (Compare PAR 2729 (map showing northern spotted owl habitat in the Late Successional Region) with PAR 100 (explaining that northern spotted owl habitat in the Project area is "interspersed").) Specifically, owl habitat in the LSR is contained in a discrete area while habitat in the Project is noncontiguous. (Id.)
The geographic distinction, between the LSR and the Project area, combined with the LSR's unique purpose of "maintain[ing] the few late-successional stands on the far eastern edge of the Shasta-Trinity National Forest and to help provide for connectivity of . . . the northern spotted owl," make it reasonable for the Forest Service to reject an alternative that would prevent logging northern spotted owl habitat in the Project area while "defer[ring] treatments . . . within the LSR." (PAR 247-75, 44 n.2.) Therefore, the Forest Service's summary judgment motion on this claim is granted and Plaintiff's motion is denied.
3. Remaining "Reasonable Range of Alternatives" Claims
The Forest Service seeks summary judgment on Plaintiff's remaining "reasonable range of alternative" claims, in which Plaintiff alleges the Forest Service "considered only near-identical alternatives" and "prepared an unreasonably narrow purpose and need statement." (Compl. ¶¶ 53, 56.) The Forest Service argues it is entitled to summary judgment on these claims since it considered fourteen alternatives and gave detailed consideration to five, which "span a tremendous range, including numerous permutations of actions and treatment locations;" and therefore, the PAR does not support Plaintiff's claims. (Fed. Def.'s Mot. Summ. J. ("Def. Mot.") 15:7-11; 17:17-18, ECF No. 13.)
Plaintiff did not address these allegations in the Complaint or respond to the Forest Service's arguments.
The Forest Service prevails on this portion of its motion since it "point[ed] out that there is an absence of evidence to support the nonmoving party's case." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).
C. Failing to Take a "Hard Look" at the Project's Environmental Impacts
Plaintiff alleges the Forest Service failed to take a "hard look" at the environmental impacts of the Project. (Compl. ¶ 62.) "The hallmarks of a 'hard look' are thorough investigation into environmental impacts and forthright acknowledgment of potential environmental harms." Nat'l Audubon Soc'y v. Dep't of Navy, 442 F.3d 174, 185 (4th Cir. 2005). "NEPA . . . require[s] that agencies take a 'hard look' at the environmental effects of their planned action." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374 (1989). To satisfy the "hard look" standard "federal agencies must 'carefully consider[] detailed information concerning significant environmental impacts [of the proposed action],' but . . . are not require[d] to do the impractical.'" Klamath-Siskiyou Wildlands Ctr. v. Burea of Land Mgmt., 387 F.3d 989, 992-93 (9th Cir. 2004) (alterations in original) (quotations omitted). "The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983).
1. Snag Baseline Data and Snag Deficits
Plaintiff argues the Forest Service failed to take a "hard look" at whether the number of snags in the Project area met or exceeded the Forest Plan's snag retention standard. (Compl ¶ 62.)
All management activities undertaken by the Forest Service must comply with the [F]orest [P]lan . . . . [and the Forest Plan must address how to] maintain viable populations of native and desired non-native wildlife species. In order to ensure compliance with the [F]orest [P]lan . . . the Forest Service must conduct an analysis of each "site specific" action, such as a timber sale, to ensure that the action is consistent with the [F]orest [P]lan.Rittenhouse, 305 F.3d at 961 (citations omitted).
The Forest Plan for Shasta-Trinity Forest states: at "a minimum, snags are to be retained . . . at levels sufficient to support species of cavity-nesting birds at 40 percent of potential population levels . . . [with] an average of 1.5 snags per acre greater than 15 inches in diameter and 20 feet in height." (PAR 4480) (emphases added.) As part of the EA for the Project, the Forest Service determined:
[a]ll action alternatives [for the Project] retain existing snag treatment units at a level that exceeds the Forest Plan standards and guidelines for matrix lands and that support species of cavity-nesting birds at 40 percent of potential population levels. At a minimum, two snags per acre at least 15 inches in diameter and at least 20 feet in height would be retained and snags will be retained in groups where available.(PAR 1259.)
Plaintiff argues that the Forest Service relied on "conclusory allegations" when stating the Project will satisfy the Forest Plan snag retention standard, and therefore failed to demonstrate that the agency took a "hard look" at the issue. (Pl. Mot. 28:1-7.) Specifically, Plaintiff contends the Forest Service did not disclose the data on which it relied in reaching its conclusion and did not address conflicting 2003 survey results.
The Forest Service contends it disclosed data in the EA supporting its conclusion that the Forest Plan snag retention standard was being met and that it was not required to address prior conflicting survey results since those results had "been superseded by more recent and more site-specific evaluations." (Def. Opp'n 15:4-9; 16:10-13; 19:6-20.)
The PAR reveals that the Forest Service has conducted several analyses of snag levels in the Forest; relevant here are analyses conducted in 2003 and 2011. The 2003 analysis concluded: "[c]urrent snag levels in the watershed are unknown. Snag distribution is not uniform across the landscape (Snag distribution may be correlated with landtype associations). Snag surveys for existing and past projects . . . indicate that snag levels are lower than Forest Plan minimums." (PAR 4070.) The 2011 analysis observed: "snag... habitat continues to increase over time as a result of wildfire events and insect and disease outbreak" and determined that the Project's "[p]roposed treatment units have at least two snags per acre greater than 15 inches dbh [diameter at breast height] . . . [b]ased on unit assessment[s] [conducted] in October 2011." (PAR 1259, 1261.)
The Forest Service concluded based on the 2011 survey data that the Project would not reduce snag levels below the Forest Plan snag retention standard, stating:
[it] would not reduce the amount of snag... habitat at the Forest level (or project
level). The extent of reduced snag density is negligible considering that ongoing snag ... recruitment from insect and disease activity would continue across the Forest. Natural recruitment will also continue within the project area, only at slower rates than what is currently occurring.(PAR 1261.)
Further, the Forest Service opined:
[the Project will] retain all snags 15 inches in diameter and larger and at least 20 feet in height . . . with the following [two] exceptions: . . . If more than 10 snags exist in a group (snag pocket) retain at least 10. Snags in excess of 10 in snag pockets in the coarse woody debris deficit units may be felled and left only as necessary to meet large woody material requirements for Soil Quality Standards. . . . [and] Hazardous snags (snags that pose a threat to life or property) may be cut, as necessary for safety.(PAR 77.)
The Forest Service's analysis of the 2011 survey data shows it took a "hard look" at snag levels. The Forest Service sufficiently disclosed the data on which it relied, stating: "[p]roposed treatment units have at least two snags per acre greater than 15 inches dbh . . . . [b]ased on unit assessment[s] [performed] in October 2011." (PAR 1259.) Further, it was reasonable for the Forest Service to conclude that snag levels exceeded the Forest Plan snag retention standard since its most recent 2011 survey data showed snag levels increased over time and exceeded the Forest Plan snag retention standard. (PAR 1259, 1261.) It was also reasonable for the Forest Service to conclude that implementing the Project would not cause snag levels to fall below the Forest Plan snag retention standard since insect and disease activity continue to recruit new snags and the Project will not log existing snags except where they occur in groups of ten or more or where a snag poses a threat to life or property. (PAR 1261, 77.)
The data and conclusions in the EA demonstrate the Forest Service "carefully consider[ed] detailed information concerning significant environmental impacts" of the Project on snag levels. Klamath-Siskiyou Wildlands Ctr., 387 F.3d at 992 (quotations omitted). Therefore, the Forest Service's motion on this claim is granted and Plaintiff's motion is denied.
2. Remaining "Hard Look" Claims
Plaintiff's remaining "hard look" claims allege the Forest Service did not "adequately analyze":
(A) the potential for wildfire in the project area as a result of logging; (B) northern spotted owl use of burned forests of all severities; (C) degradation of existing and future northern spotted owl habitat; (D) effects to northern spotted owl prey; (E) barred owls and their effects on the northern spotted owl; (F) the effects of regeneration logging on fire behavior; (G) the effects of wildfire, vegetation, and natural recovery process from logging large diameter trees; (H) the past, present, and reasonably foreseeable cumulative impacts; . . . [and] (J) landings.(Compl. ¶ 62.)
The Forest Service argues it is entitled to summary judgment on Plaintiff's remaining "hard look" claims since the "EA and its Appendices span over 500 pages," "rest[] upon dozens of individual specialists' reports spanning thousands of more pages" and do not support Plaintiff's allegations. (Def. Mot. 21:27-22:1; 22:1-5.) Plaintiff has not addressed the Forest Service's argument.
The Forest Service's motion is granted since it "point[ed] out that there is an absence of evidence to support the [Plaintiff's] case" and Plaintiff failed to come forward with "specific facts showing there is a genuine issue for trial." Soremekun, 509 F.3d at 984.
D. Failing to Comply with the Forest Plan's Snag Retention Standard
Plaintiff argues the Forest Service violated the NFMA by failing to ensure the Project satisfied the Forest Plan snag retention standard. (Pl. Mot. 35:10-21.) The Forest Service contends its analysis was sufficient. (Def. Opp'n 23:22-24.)
"It is well-settled that the Forest Service's failure to comply with the provisions of a Forest Plan is a violation of NFMA" and for an agency action to comply with the NFMA, a reviewing court must be "[]able to determine from the [administrative] record that the agency is complying with the forest plan standard[s]." Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 961-62 (9th Cir. 2005).
The Forest Service has shown it complied with the Forest Plan snag retention standard and that it "articulate[d] a rational connection between the facts found and the conclusions reached." Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1157 (9th Cir. 2006) abrogated on other grounds by Winter v. Natural Res. Council, Inc., 555 U.S. 7 (2008). Therefore, the Forest Service's summary judgment motion on the NFMA claim is granted and Plaintiff's motion is denied.
E. Failing to Prepare an Environmental Impact Statement ("EIS")
Plaintiff alleges the Forest Service violated NEPA by failing to prepare an EIS for the Project. (Compl. ¶¶ 70-71.)
In 42 U.S.C. § 4332(2)(C), NEPA requires that all federal agencies must include "a detailed statement . . . on the environmental impact of the proposed action" "in every . . . major Federal action[] significantly affecting the quality of the human environment." (emphasis added). "Where an EIS is not categorically required, the agency must prepare an Environmental Assessment to determine whether the environmental impact is significant enough to warrant an EIS." Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846 864 (9th Cir. 2004). If, after preparing an EA, the agency concludes an EIS is not required, it must put forth "a convincing statement of reasons that explain[s] why the project will impact the environment no more than insignificantly." Id. "An agency's decision not to prepare an EIS will be considered unreasonable if the agency fails to 'supply a convincing statement of reasons why potential effects are insignificant.'" Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988) (quoting The Steamboaters v. FERC, 759 F.2d 1382, 1393 (9th Cir. 1985)).
The term "significantly" is explained in 40 C.F.R. § 1508.27 as requiring consideration of the intensity of the proposed action's impact. 40 C.F.R. § 1508.27(b)(1)-(10) identifies "intensity factors" an agency must consider when evaluating a Project's impact, including inter alia:
(5) the degree to which the possible effects on the human environmental are highly
uncertain or involve unique or unknown risks; . . . and (9) "the degree to which the action may affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.
An EIS is not required each time an "intensity factor" is implicated; instead it is only required if the "degree to which an action may adversely affect" one of the intensity factors is significant. Envt'l Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1012 (9th Cir. 2006).
The Forest Service considered the "intensity factors" in the EA and concluded that "an environmental impact statement will not be prepared" because the Project "will not have a significant effect on the quality of the human environment, considering the . . . intensity of impact[]." (PAR 25.)
1. Significant Effects on the Northern Spotted Owl
Plaintiff argues NEPA required the Forest Service to prepare an EIS for the Project since it will have a significant impact on northern spotted owls by logging "within . . . critical [northern spotted owl] habitat." (Pl. Mot. 31:5-9.)
The Forest Service responds that the Project will not have a significant impact on critical owl habitat since the Project will improve treated foraging and dispersal habitat and "any impact the Project[] . . . [is] expected to have on northern spotted owl habitat [is] . . . predicted to be beneficial over the long-term even though in the short-term, there would be some habitat elements reduced." (Def. Opp'n 22:9-24.)
The Forest Service addressed the Project's impact on northern spotted owl habitat in the EA, stating in relevant part:
Approximately 137 acres of foraging habitat..., 23 acres of dispersal habitat..., and 41 acres of capable habitat . . . are proposed for treatment . . . . Given that: 1) treatments are not proposed within nesting/roosting habitat or high-quality foraging habitat and, 2) treatments within 137 acres of foraging habitat will not remove primary constituent elements of critical habitat because they have been designed to retain the current function of foraging habitat following treatment, and 3) treatments in dispersal and capable habitat will not significantly affect [northern spotted owl] dispersal through the [P]roject area, the [Forest] Service determines that the Project may affect, but is not likely to adversely affect designated critical habitat in the action area.(PAR 371.)
The Forest Service adequately explained that the Project will not have a significant impact on northern spotted owl habitat since it will not log in areas that serve as "nesting/roosting habitat or high-quality foraging habitat," and that in the areas where the Project intersects northern spotted owl foraging and dispersal habitat, the logging will not interfere with the owl's use of the land. (PAR 371.) This provides "a convincing statement of reasons explaining why the project will impact [the spotted owls critical habitat] no more than insignificantly," even though it proposes logging in 201 acres of northern spotted owl habitat. Ocean Advocates, 402 F.3d at 864. Since the Forest Service's conclusion that the Project would not have a significant impact on critical owl habitat was not arbitrary or capricious, no EIS was required. Therefore, the Forest Service's motion on this claim is granted and Plaintiff's motion is denied.
2. Highly Uncertain or Unknown Risks to Northern Spotted Owls
Plaintiff additionally argues an EIS was required since the Project aims to support northern spotted owls by reducing the risk of wildfire yet, "there is significant uncertainty as to whether [the prevention of wildfire] . . . is beneficial or adverse to the northern spotted owl." (Pl. Mot. 31:21-32:2.)
The Forest Service acknowledges "some uncertainty as to the extent to which northern spotted owls used burned forest to forage" but argues "the effects of the Project as a whole . . . are [not] highly uncertain" since "[t]here is no serious uncertainty that . . . . the loss of nesting and roosting habitat from catastrophic wildfire remains among the primary threats to the survival of the owl." (Def. Reply 12:22-13:7.)
The "scientific uncertainty" concerning northern spotted owls' use burned habitat is addressed in the EA where the Forest Service states in relevant part:
While it has been shown that California spotted owls show an apparent preference for foraging in burned areas of all severities (Bond, et al., 2009) the author attributed the majority of these results to the likelihood that post-burn use by owls is associated with an "increased abundance or accessibility of prey." The . . . study also noted that while California spotted owls foraged in all burn severity areas (and may have preferred high-severity burn areas) they avoided high and moderate severity areas for roosting, and presumable nesting.(PAR 143.)
The Forest Service states in the PAR that this research calls into question conventional wisdom that northern spotted owls do not prefer high-severity burn areas for foraging, but does not suggest the owls prefer high-severity burn areas for roosting. (PAR 143.) The distinction is important because the Revised Recovery Plan for the northern spotted owl states that one of "the most important . . . threats to [the species is] ... habitat loss or degradation from [high-severity] stand replacing wildfire." (PAR 27416) (emphasis added.) Stand replacing wildfire "reset[s] [northern spotted owl habitat] to an early-seral stage with small tree size and large openings that would be unsuitable for [northern spotted owl] nesting, roosting, foraging and dispersal." (PAR 143.) Plaintiff offers no evidence to refute this.
Scientific controversy over whether northern spotted owls prefer to use severely burned forests is not relevant to the question whether wildfire's overall effect on the northern spotted owl is highly uncertain since stand replacing wildfire "reset[s]" the Forest and produces habitat containing "small tree size and large openings that would be unsuitable" for the northern spotted owl. (PAR 143.) These stand replacing fires eliminate rather than create new northern spotted owl habitat and the Project is designed to "reduc[e] the risk of [just such] catastrophic fire[s]." (PAR 370.) Since uncertainty over whether northern spotted owls prefer to forage in burned habitat does not raise concerns as to whether the Project's overall effect on the owls would be highly uncertain, no EIS was required. Barnes v. U.S. Dep't of Transp., 655 F.3d 1124, 1140 (9th Cir. 2011) ("An agency must generally prepare an EIS if the environmental effects of a proposed agency action are highly uncertain").
Therefore, the Forest Service's motion is granted and Plaintiff's motion is denied.
IV. Conclusion
For the stated reasons, Plaintiff's summary judgment motion is DENIED and the Forest Service's summary judgment motion is GRANTED. The Clerk of the Court shall enter judgment in favor of the Forest Service and close this action. Dated: March 20, 2015
/s/_________
GARLAND E. BURRELL, JR.
Senior United States District Judge