Opinion
NO. CIV. 2:12-02416 WBS KJN
06-05-2013
CONSERVATION CONGRESS Plaintiff, v. UNITED STATES FORREST SERVICE and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants.
MEMORANDUM AND ORDER RE:
MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Conservation Congress brought this action against defendants United States Forest Service ("USFS") and United States Fish and Wildlife Service ("FWS") challenging defendants' actions in connection with three proposed vegetation clearance projects on the Mendocino National Forest. Presently before the court are the parties' cross-motions for summary judgment under Federal Rule of Civil Procedure 56 and plaintiff's motion to defer consideration of its Endangered Species Act ("ESA") claims under Federal Rule of Civil Procedure 56(d).
I. Relevant Facts and Procedural History
In 2012, USFS authorized three projects to take place on the Grindstone Ranger District of the Mendocino National Forest, a unit of national forest managed by USFS. (Administrative Record ("AR") at 45, 528, 655 (Docket Nos. 20, 35).) The Mendocino National Forest is home to the Northern Spotted Owl ("NSO"), a species listed as threatened under the ESA. (Id. at 337.) The Mendocino National Forest also contains the Buttermilk Late Successional Reserve ("Buttermilk LSR"). (Id. at 355, 1477.) The Buttermilk LSR "is the largest LSR on the forest and a crucial link" between various other LSRs in the region. (Id. at 355.)
LSRs are managed to protect and enhance late successional forest habitat for species dependent upon its attributes, and to help ensure the conservation of species diversity. (AR at 1675.) The main role of LSRs is to protect from large scale disturbances such as stand replacing fire, windthrow, insect and disease epidemics, and major human caused impacts. (Id.) As recognized by the Ninth Circuit, "LSRs lie at the heart of the [National Forest Plan's] ecosystem-based conservation strategy for the northern spotted owl and other endangered species." Or. Nat. Res. Council v. Brong, 492 F.3d 1120, 1126 (9th Cir. 2007).
When initially planning the projects, "all of the Buttermilk LSR [was] designated spotted owl critical habitat" under the 2008 rule for NSO critical habitat, see Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the N. Spotted Owl, 73 Fed. Reg. 47,326 (Aug. 13, 2008). (AR at 355) In December 2012, a new rule designating NSO critical habitat was published to become effective January 3, 2013. See Endangered and Threatened Wildlife and Plants; Designation of Revised Critical Habitat for the N. Spotted Owl, 77 Fed. Reg. 71,876 (Dec. 4, 2012). The 2012 rule affected the NSO critical habitat designation of several areas of the Mendocino National Forest. (AR at 2542.)
USFS maintains that "[b]ecause of this new designation, [t]he Buttermilk LSR is no longer coterminous with a critical habitat unit." (Defs.' Cross-Mot. at 8 n.16 (Docket No. 39-1).)
A. Tatham Ridge Fuels Project
The first project, called the Tatham Ridge Fuels Project ("Tatham Project"), was authorized by a decision memo issued on May 25, 2012. (Id. at 45-53.) The Tatham Project was designed to reduce wildfire hazard, to accelerate tree growth for sustained timber productivity, and to develop late-successional habitat in accordance with the Buttermilk LSR. (See id. at 106, 367, 415-16, 2141.)
The Tatham Project involves three types of treatments: (1) 1,300 acres of plantation thinning by removing small trees to allow larger trees to grow more quickly; (2) approximately 879 acres of fuel break construction; and (3) 1,800 acres of prescribed burning of the understory to reduce fuel loading of forests. (Id. at 46, 343-45.) USFS created a biological assessment ("BA") for the Tatham Project. (Id. at 334). At the time of the BA, twenty-six percent of the total action area proposed by the Tatham Project would occur within the Buttermilk LSR. (Id. at 355.) Approximately fifty-four percent of the action area provides suitable NSO nesting/roosting, foraging, or dispersal habitat. (Id.) USFS concluded that the Tatham Project, "'May Affect, but is Not Likely to Adversely Affect' the northern spotted owl." (Id. at 383.)
USFS documents distinguish between the "project area" and the "action area." "[P]roject areas only encompass the actual units proposed for treatment," while "action areas" "include the proposed treatment units plus a 1.3 mile radius surrounding the unit boundaries." (AR at 809 (emphasis added).)
The Tatham Project was determined to qualify for Categorical Exclusion Six ("CE 6"), 36 C.F.R. § 220.6(e)(6), involving timber stand and/or wildlife habitat improvement activities which do not include the use of herbicides. (AR at 48-51.) Thus, while USFS created a BA and decision memo, it did not create an environmental assessment ("EA") or environmental impact statement ("EIS") in connection with the project.
B. Log Springs Project
USFS authorized the Log Springs Project by issuing a decision memo on June 28, 2012. (Id. at 658.) The Log Springs Project proposes the thinning of fifty to seventy year old ponderosa pine over seventy acres to increase resiliency to western bark beatles and to reduce high fuel loads, as well as to meet the timber production quotas for the Mendocino National Forest. (Id. at 655-57, 695-97.) In a joint BA prepared for both the Log Springs and M9 Sanitation Salvage Project ("M9 Project"), USFS determined that the Log Springs Project does not contain any designated NSO habitat or activity centers. (Id. at 823-33.) None of the project area occurs within the Buttermilk LSR, but twenty-one percent of the action area overlaps with the LSR. (Id. at 821-22.) USFS determined that both the Log Springs and M9 Projects "'Would Not Affect' the northern spotted owl or its Critical Habitat." (Id. at 831.)
USFS determined that the Log Springs Project qualified for Categorical Exclusion Twelve ("CE 12"), 36 C.F.R. § 220.6(e)(12), involving the timber harvest of seventy acres or less. (Id. at 658.) USFS did not create an EA or EIS for the project.
C. M9 Sanitation Salvage Project
The M9 Project was authorized by USFS through a decision memo issued on June 28, 2012. (Id. at 531.) The M9 Project proposes salvage and sanitation harvest of dead, dying, and at-risk trees on 250 acres, followed by reforestation "to timely restore productivity to desired levels." (Id. at 528-31, 573-75.) The project area exhibits larger than normal pockets of mortality due to bark beatle infestation which contributes to heavy fuel loads. (Id. at 528, 530, 571-72.) The M9 Project is designed to address past beatle attacks, reduce fuel load on the forest, and contribute to the Mendocino National Forest's annual timber harvest levels. (Id. at 529-30.) As with the Log Springs Project, none of the project area occurs within the Buttermilk LSR, but twenty-one percent of the action area overlaps with the LSR. (Id. at 821-22). No designated NSO habitat or activity centers are present within the M9 Project area. (Id. at 823-33.) The joint BA found that the M9 and Log Springs Projects "'Would Not Affect' the northern spotted owl or its Critical Habitat." (Id. at 831.)
USFS determined that the M9 Project fit within Categorical Exception Thirteen for the salvage harvest of 250 acres or less of dead or dying trees ("CE 13"), 36 C.F.R. § 220.6(e)(13), Categorical Exception Fourteen for sanitation harvest to control insects or disease ("CE 14"), id. § 220.6(e)(14), and Categorical Exclusion Five for the regeneration of native species ("CE 5"), id. § 220.6(e)(5). (AR at 527, 531.) USFS did not create an EA or EIS in connection with the project.
D. Procedural History
Plaintiff is a non-profit organization dedicated to maintaining, protecting, and restoring the native ecosystems of northern California. (Compl. ¶ 18 (Docket No. 1).) Plaintiff filed suit challenging defendants' actions in connection with the approval of the three projects, bringing claims under both the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the ESA, 16 U.S.C. § 1531 et seq. Plaintiff's NEPA claims are brought exclusively against USFS and include: (1) improper use of a categorical exclusion; (2) failure to analyze cumulative impacts of the three projects; and (3) failure to prepare an EIS. (Id. ¶¶ 122-152.) Plaintiff also brings various ESA claims, the majority of which are brought against both USFS and FWS. (Id. ¶¶ 153-196.)
On December 21, 2012, defendants moved to limit the court's review to the administrative record and deny discovery by plaintiff. (Docket No. 17.) The court denied the motion without prejudice to the right to object subsequently to the consideration of material outside of the record. (Feb. 26, 2013 Order at 2 (Docket No. 29).) The court ordered that "[p]laintiff may pursue discovery regarding its ESA claims against USFS while plaintiff litigates its summary judgment motion on its claims under [NEPA]." (Id.)
Plaintiff moved for summary judgment on its NEPA claims under Rule 56. (Docket No. 30.) Defendants, in their cross-motion for summary judgment, moved for summary judgment on both the NEPA and ESA claims. (Docket No. 39.) Plaintiff moved to defer consideration of the ESA claims under Rule 56(d). (Docket No. 41.)
II. Motion to Defer
Rule 56(d) provides that "[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may . . . defer considering the motion or deny it." Fed. R. Civ. P. 56(d). "To prevail under . . . Rule [56(d)], [a] part[y] opposing a motion for summary judgment must make (a) a timely application which (b) specifically identifies (c) relevant information, (d) where there is some basis for believing that the information sought actually exists." Emp'rs Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1129 (9th Cir. 2004) (internal quotation marks and citation omitted).
Here, plaintiff notes that the deposition of its ESA expert has yet to occur, and documents regarding the defendants' continued consultation regarding the Tatham Project were produced during the briefing of the cross-motions for summary judgment. (Docket No. 36.) The court finds plaintiff's application sufficient to defer consideration of its ESA claims under Rule 56(d), and plaintiff's motion will accordingly be granted.
The court now turns to the parties' cross motions for summary judgment on plaintiff's NEPA claims.
III. Cross-Motions for Summary Judgment
The court reviews NEPA claims to determine whether they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" under the Administrative Procedure Act ("APA"). 5 U.S.C. § 706(2)(A); see Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1090 (9th Cir. 2013). "Agency action is arbitrary and capricious if '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 is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 846 (9th Cir. 2013) (quoting City of Sausalito v. O'Neill, 386 F.3d 1186, 1206 (9th Cir. 2004)).
"A reviewing court 'generally must be at its most deferential when reviewing scientific judgment and technical analyses within the agency's expertise." Id. (internal quotation marks and citation omitted). The court also "defers to [the agency's] 'interpretation of its own regulations . . . unless plainly erroneous or inconsistent with the regulations being interpreted.'" Salazar, 706 F.3d at 1090 (alteration in original) (quoting Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171 (2007)). "As the Supreme Court stated in Citizens to Preserve Overton Park, Inc. v. Volpe, 'the ultimate standard of review is a narrow one,' and '[t]he court is not empowered to substitute its judgment for that of the agency.'" Klamath-Siskiyou Wildlands Cntr. v. Bur. of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).
A. Standing
"In limiting the judicial power to 'Cases' and 'Controversies,' Article III of the Constitution restricts it to the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violations of law." Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009). "To seek injunctive relief, a plaintiff must show that he is under threat of suffering 'injury in fact' that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the alleged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury." Id. (citing Friends of the Earth, Inc. v. Laildlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)).
"'It is common ground that . . . [an] organization[] can assert the standing of its members.' But the organization asserting standing must provide 'specific allegations establishing that at least one identified member [has] suffered or would suffer harm . . . .'" W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 483 (9th Cir. 2010) (first five alterations in original) (quoting Summers, 555 U.S. at 494, 498). "While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the aesthetic interests of the plaintiff, that will suffice." Summers, 555 U.S. at 494 (citing Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972)).
In support of its motion, plaintiff submits the declaration of Denise Boggs, Executive Director and member of plaintiff's organization. (Docket Nos. 30-1, 30-2.) Ms. Boggs declares that she regularly visits the Mendocino National Forest where the proposed projects will take place, (Boggs Decl. ¶¶ 2, 7 (Docket No. 30-1)), that she has plans to return in August 2013, (id. ¶ 7), and that she is interested in the wildlife and vegetation, particularly raptors and "beautiful large old trees and snags," (id.). The proposed projects, and the Tatham Project in particular, allegedly threaten to injure these interests. (Id.) The court finds that Ms. Boggs' declaration is sufficient to demonstrate plaintiff's standing. See Kraayenbrink, 632 F.3d at 484-85 (declaration of Western Watersheds Project's founder identifying grazing allotment site that "he has personally visited and continues to visit, study, enjoy, and in which he pursues recreational activities," the regulation of which would allegedly damage his aesthetic enjoyment, was sufficient to satisfy standing).
B. Waiver and Exhaustion of Administrative Remedies
"Persons challenging an agency's compliance with NEPA 'must structure their participation so that it . . . alerts the agency to the [parties'] position and contentions,' in order to allow the agency to give the issue meaningful consideration." Barnes v. U.S. Dep't of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011) (alterations in original) (quoting Dep't of Transp. v. Public Citizen, 541 U.S. 752, 764 (2004)). While an issue not raised during the notice and comment may result in waiver of that argument in federal court, see N. Idaho Cmty. Action Network v. U.S. Dep't of Transp., 545 F.3d 1147, 1156 n.2 (9th Cir. 2008), "a party has participated in a sufficiently meaningful way when it has alerted the agency to its position and claims," City of Sausalito, 386 F.3d at 1208.
"The exhaustion doctrine serves 'to permit administrative agencies to utilize their expertise, correct any mistakes, and avoid unnecessary judicial intervention in the process.'" Kimbell, 709 F.3d at 846 (quoting Lands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir. 2010)). "The APA requires that plaintiffs exhaust available administrative remedies before bringing grievances to federal court, 5 U.S.C. § 704," including the specific appeal procedures established by the agency. Kimbell, 709 F.3d at 846. The Ninth Circuit has "defined the exhaustion requirement broadly: 'The plaintiffs have exhausted their administrative appeals if the appeal, taken as a whole, provided sufficient notice to the [agency] to afford it the opportunity to rectify the violations that plaintiffs alleged." Great Basin Mine Watch v. Hankins, 456 F.3d 955, 965 (9th Cir. 2006) (alteration in original) (quoting Native Ecosystems Council v. Dombeck, 304 F.3d 886, 899 (9th Cir. 2002)). Plaintiffs are not barred from bringing claims when the plaintiffs "'presented a much less refined legal argument in their administrative appeal.'" Id. (quoting Native Ecosystems, 304 F.3d at 898).
USFS argues that plaintiff waived and failed to exhaust its arguments regarding the Log Springs Project because plaintiff's comments were submitted five days late, (Defs.' Cross-Mot. at 20 (Docket No. 39)), while plaintiff argues that, due to a publishing error regarding the related M9 Project, the notice and comment date was delayed such that its joint comments on the Log Springs and M9 Projects were timely, (Pl.'s Reply at 8-9 (Docket No. 42)). It appears to the court that plaintiff, at the very least, participated in a way that sufficiently alerted USFS to its position and claims regarding the Log Springs Project, see Barnes, 655 F.3d at 1132, especially when the two projects shared many of the same expert reports, were originally published on the same day, and were close geographically. Since USFS does not dispute that it was put on notice of plaintiff's claims and arguments regarding the project, the court will consider those arguments.
USFS also asserts that plaintiff's comments and administrative appeal did not raise the argument that the size of the Tatham Project precludes the use of a categorical exclusion, and therefore this argument is waived and barred. In its comments and administrative appeal, plaintiff argued generally that use of a categorical exclusion was inappropriate for the Tatham Project. (AR at 467-68, 18-20.) Since "[t]he court of appeals . . . has declined to require more than general objections during the administrative process to avoid 'unduly burden[ing] those who pursue administrative appeals unrepresented by counsel who may frame their claims in non-legal terms rather than precise legal forumlations,'" the court will consider plaintiff's arguments regarding the size of the Tatham Project. Save Strawberry Canyon v. U.S. Dep't of Energy, 830 F. Supp. 2d 737, 746 (N.D. Cal. 2011) (holding that raising only general concerns about noise, and not specifically criticizing the manner in which noise was calculated, was sufficient for the district court to consider the argument).
C. Improper Use of Categorical Exclusions
"NEPA requires that federal agencies perform environmental analysis before taking any 'major Federal actions significantly affecting the quality of the human environment.'" Salazar, 706 F.3d at 1094 (quoting 42 U.S.C. § 4332(2)(c)). "NEPA does not require particular environmental standards or mandate that agencies achieve substantive environmental results." Greater Yellowstone Coal. v. Lewis, 628 F.3d 1143, 1150 (9th Cir. 2010). Congress in enacting NEPA "required only that the agency take a 'hard look' at the environmental consequences before taking a major action." Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983).
"Under the CEQ regulations, which were promulgated pursuant to NEPA, each agency is directed to identify 'categorical exclusions' which are categories of actions which do not, individually or cumulatively, have a significant effect on the human environment and therefore, do not require an EA or EIS." Alaska Ctr. For Env't v. U.S. Forest Serv., 189 F.3d 851, 857 (9th Cir. 1999) (citing 40 C.F.R. § 1508.4). Federal agencies are also required to "provide for extraordinary circumstances," which are circumstances "in which a normally excluded action may have a significant environmental impact." 40 C.F.R. § 1508.4. "When extraordinary circumstances are present, the agency must prepare environmental documentation despite the fact that the activity in question falls within a categorical exclusion." California v. Norton, 311 F.3d 1162, 1170 (9th Cir. 2002).
To comply with NEPA when evaluating a particular project for categorical exclusion, an agency must first determine whether the proposed action falls within a categorical exclusion and then determine whether "extraordinary circumstances" exist that would prevent application of the exclusion. See id.; Salazar, 706 F.3d at 1097. "Application of a categorical exclusion is not an exemption from NEPA; rather, it is a form of NEPA compliance, albeit one that requires less than where an environmental impact statement or an environmental impact is necessary." Salazar, 706 F.3d at 1096 (citing 40 C.F.R. § 15084.4). "[W]here a proposed action fits within a categorical exclusion, full NEPA analysis is not required." Id. at 1097 (citing Wong v. Bush, 542 F.3d 732, 737 (9th Cir. 2008)).
Consistent with CEQ regulations, USFS has promulgated seventeen categorical exceptions which require a project or case file and decision memo to satisfy NEPA. See 36 C.F.R. § 220.6(e). In providing for "extraordinary circumstances" sufficient to preclude use of its categorical exclusions, USFS has determined that:
Resource considerations that should be considered in determining whether extraordinary circumstances related to a proposed action warrant further analysis and documentation in an EA or an EIS are:36 C.F.R. § 220.6(b)(1).
(i) Federally listed threatened or endangered species or designated critical habitat, species proposed for Federal listing or proposed critical habitat, or Forest Service sensitive species;
(ii) Flood plains, wetlands, or municipal watersheds;
(iii) Congressionally designated areas, such as wilderness, wilderness study areas, or national recreation areas;
(iv) Inventoried roadless area or potential wilderness area;
(v) Research natural areas;
(vi) American Indians and Alaska Native religious or cultural sites; and
(vii) Archaeological sites, or historic properties or areas.
"The mere presence of one or more of these resource conditions does not preclude use of a categorical exclusion . . . ." Id. § 220.6(b)(2). "It is the existence of a cause-effect relationship between a proposed action and the potential effect on these resource conditions, and if such a relationship exists, the degree of the potential effect of a proposed action on these resource conditions that determines whether extraordinary circumstances exist." Id.
1. Tatham Project
The USFS determined that the Tatham Project fit within CE 6. (AR at 48-51.) CE 6 is an exclusion for "[t]imber stand and/or wildlife improvement activities that do not include the use of herbicides or do not require more than 1 mile of low standard road construction." 36 C.F.R. § 220.6(e)(6). Examples include, but are not limited to:
(i) Girdling trees to create snags;Id. If a proposed project fits within this exclusion and no extraordinary circumstances exist, USFS need only create a project or case file and decision memo. Id. § 220.6(e). Plaintiff does not contest that the Tatham Project's plantation thinning, fuel break construction, and prescribed burning are activities that fit within CE 6.
(ii) Thinning or brush control to improve growth or to reduce fire hazard including the opening of an existing road to a dense timber stand;
(iii) Prescribed burning to control understory hardwoods in stands of southern pine; and
(iv) Prescribed burning to reduce natural fuel build-up and improve plant vigor.
Keeping in mind that an extraordinary circumstance is a circumstance "in which a normally excluded action may have a significant environmental impact," 40 C.F.R. § 1508.4 (emphasis added), USFS's determination that no extraordinary circumstances existed to preclude the use of a categorical exclusion does not appear to be supported by the record. A significant portion of the Tatham Project occurs in NSO nesting/roosting or foraging habitat, (AR at 363), short-term effects of thinning include "a possible loss of suitable spotted owl habitat," (id. at 367), and "[a]ll treatments have the potential to directly affect nesting, foraging or dispersing individuals due to disturbance, noise or smoke, which could possibly disrupt reproductive behavior and/or cause nest failure," (id. at 371). The BA prepared in support of the Tatham Project admits that the Project "May Affect, but is Not Likely to Adversely Affect the northern spotted owl." (Id. at 383 (internal quotation marks omitted).)
Similarly to California v. Norton, 311 F.3d 1162, (9th Cir. 2002), "there is substantial evidence in the record that exceptions to the categorical exclusion may apply, and the fact that the exceptions may apply is all that is required to prohibit use of the categorical exclusion." Norton, 311 F.3d at 1177. The court also notes that, while the USFS Handbook "does not have the independent force and effect of law," see Southwest Center for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996), the Handbook provides that "[i]f the degree of potential effect raises uncertainty over its significance, then an extraordinary circumstance exists, precluding use of a categorical exception." U.S. Forest Serv. Handbook 1909.15, ch. 30, § 31.2 (2010); see Alaska Ctr., 189 F.3d 858 (citing the USFS Handbook in its analysis of categorical exclusions).
Norton also states that "[w]here there is substantial evidence in the record that exceptions to the categorical exclusion may apply, the agency must at the very least explain why the action does not fall within one of the exceptions." Norton, 311 F.3d at 1177. Phrased another way, an agency's explanation as to why a categorical exclusion applies is a necessary, but not sufficient, condition to correctly apply a categorical exclusion. While USFS included discussion in the Decision Memo explaining its decision, the court finds that USFS's explanation was not sufficient to establish that extraordinary circumstances were not present.
One of the primary cases relied upon by USFS, Southwest Center for Biological Diversity v. United States Forest Service, 100 F.3d 1443 (9th Cir. 1996), noted that "an agency may issue a categorical exclusion even where threatened or endangered species are present if the agency determines that the project will not impact negatively on the species." Sw. Ctr., 100 F.3d at 1449 (emphasis added) (citing Pyramid Lake Paiute Tribe v. U.S. Dep't of the Navy, 898 F.2d 1410, 1414-16, 1420 (9th Cir. 1990)). Here, the agency did not determine that the project will not affect the NSO; rather, it concluded that the project is not likely to adversely affect the NSO. In Southwest Center, the defendant agency in that case made a "no effect" finding regarding the species at issue--similarly to the M9 and Log Springs Projects here--whereas the Tatham Project involved a finding that the Project may affect, but is not likely to adversely affect, the NSO. See id. at 1449-50.
Since the court finds that USFS's decision to apply a categorical exclusion to the Tatham Project is arbitrary and capricious, plaintiff's motion for summary judgment on the Tatham Project be granted and USFS's motion for summary judgment will be denied. USFS must therefore prepare legally adequate NEPA documentation for the Tatham Project.
2. Log Springs Project
As for the Log Springs Project, USFS determined that it fit within CE 12, which provides for the exclusion of
[h]arvest of live trees not to exceed 70 acres, requiring no more than 1/2 mile of temporary road construction. . . . Examples include, but are not limited to: (i) removal of individual trees for sawlogs, speciality products, or fuelwood, and (ii) Commercial thinning of overstocked stands to achieve the desired stocking level to increase health and vigor.36 C.F.R. § 220.6(e)(12).
The Log Springs Decision Memo notes that project area is "currently over stocked for ponderosa pine stands; this has been shown to make the stands vulnerable to western bark beetle attacks." (AR at 655.) In addition, the Memo notes that the over stocking has created high fuel loads "which are above levels which would allow for beneficial effects from fire." (Id. at 656.) These determinations are supported by the Log Springs Project Silviculture Report. (Id. at 694-95.)
The BA created in connection with the Log Springs and M9 Projects notes that some NSO activity centers overlap the action area of the projects, but after analyzing both the direct and indirect effects on the NSO, USFS determined that the projects "Would Not Affect" the NSO. The BA found that no NSO nesting, roosting, or foraging habitat will be treated, the projects are outside the NSO critical habitat, any proposed treatments are not within a quarter mile of any suitable NSO nesting habitat so disturbance would not occur, and "[although] some prey species may be temporarily displaced, the distance to spotted owl foraging habitat is such that spotted owl foraging success would not be affected." (Id. at 831.) After the 2012 critical habitat rule was passed, USFS again determined that the Log Springs Project would not adversely affect the NSO because its project areas were not within newly designated critical habitat. (Id. at 2574.)
From the record before the court, USFS's decisions that the Log Springs Project qualifies for categorical exclusion under CE 12 and that no extraordinary circumstances exist were not arbitrary or capricious. The court will accordingly deny plaintiff's motion for summary judgment in its favor while granting USFS's motion for summary judgment against plaintiff on this claim.
3. M9 Project
USFS determined that the M9 project fit within CE 13, CE 14, and CE 5. (AR at 531-33.) To be excluded under CE 13, the project must involve "[s]alvage of dead and/or dying trees not to exceed 250 acres, requiring no more than 1/2 mile of temporary road construction. . . . Examples include, but are not limited to "(i) [h]arvest of a portion of a stand damaged by a wind or ice event and construction of a short temporary road to access the damaged trees, and (ii) [h]arvest of fire-damaged tree." 36 C.F.R. § 220.6(e)(13).
CE 14 involves "[c]ommercial and non-commercial sanitation harvest to control insects or disease not to exceed 250 acres, requiring no more than 1/2 mile of temporary road construction, including removal of infested/infected trees and adjacent live uninfested/uninfected trees as determined necessary to control the spread of insects or disease." 36 C.F.R. § 220.6(e)(14). "Examples include, but are not limited to: (i) Felling and harvest of trees infested with southern pine beetles and immediately adjacent uninfested trees to control expanding spot infestations, and (ii) Removal and/or destruction of trees affected by a new exotic insect or disease . . . ." Id.
CE 5 allows for the exclusion of "[r]egeneration of an area to native tree species, including site preparation that does not involve the use of herbicides or vegetation type conversion." 36 C.F.R. § 220.6(e)(5). "Examples include, but are not limited to: . . . (ii) Planting trees or mechanical seed dispersal of native tree species following a fire, flood, or landside." Id.
USFS's determination that the M9 Project fit within these three CEs is not arbitrary or capricious. The M9 Project includes commercial thinning of 250 acres of ponderosa pine to limit mortality caused by western bark beetle attacks, (AR at 528-29, 571-72), an activity which plausibly fits within CE 14, see 36 C.F.R. § 220.6(e)(14). USFS's determination that the M9 Project also fit within CE 13, which involves the salvage of dead and dying trees is also not implausible, as just under a quarter of all board feet of timber products harvested in the Project would involve dead timber products, (AR at 529), and one of the primary purposes of the project was to "recover the economic value of salvageable dead trees," (id. at 570). Finally, the M9 Project proposes reforestation for under stocked areas to restore productivity to timber producing areas, (id. at 529), which plausibly conforms with CE 5, see 36 C.F.R. § 200.6(e)(5).
As noted above, USFS adequately considered the impacts on the NSO and was not arbitrary and capricious in finding that no extraordinary circumstances existed to preclude application of a categorical exclusion. (See AR 831.) Accordingly, the court will deny plaintiff's motion for summary judgment and will grant summary judgment in favor of USFS on this claim.
D. Cumulative Impacts
In addition to challenging the projects independently, plaintiff alleges that USFS failed to consider "cumulative impacts" of the combined Log Springs and M9 Projects, as well as the projects' effects in combination with other regional projects, such as nearby Smokey Project. (Compl. ¶¶ 141-45; Pl.'s Mot. at 32-35; Pl.'s Reply at 17-19.) In Center for Biological Diversity v. Salazar, the Ninth Circuit analyzed this very issue in connection with the Bureau of Land Management's application of a categorical exclusion to the issuance of a gravel extraction permit. Salazar, 706 F.3d at 1096. The court explained that the language of 40 C.F.R. § 1508.25, which requires that an agency consider "indirect" and "cumulative" impacts, "explicitly applies to environmental impacts statements," and "application of [its] requirements to categorical exclusions is inconsistent with the efficiencies that the abbreviated categorical exclusion process provides." Id. at 1097. Noting that "where a proposed action fits within a categorical exclusion, full NEPA analysis is not required," the court concluded that § 1508.25's requirements "do not apply to [the agency's] categorical exclusion analysis in this case." Id.
Salazar specifically declined to apply Kern v. U.S. Bur. of Land Mgmt., 284 F.3d 1062 (9th Cir. 2002), a case cited by plaintiff in support of its "cumulative impacts" argument, in the categorical exclusion context. See Salazar, 706 F.3d at 1097.
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While the Salazar court engaged in a cumulative effects analysis, it did so because BLM's regulations required a finding of extraordinary circumstances when a proposed action would "'[h]ave a direct relationship to other actions with individually insignificant but cumulatively significant environmental effects.'" See id. at 1097 (alteration in original) (citing BLM NEPA Handbook App'x at 5, § 2.6; 43 C.F.R. § 46215(f)) ("Though not required to do so by section 1508.25, under BLM's own regulations, this 'extraordinary circumstances' analysis required BLM to consider whether issuance of the gravel permit would '[h]ave a direct relationship to other actions with individually insignificant but cumulative significant environmental effects.'" (emphasis added)). Here, however, the Forest Service's regulations do not require a cumulative impacts analysis when determining whether there are extraordinary circumstances, and plaintiff points to no applicable regulation requiring any such analysis. See 36 C.F.R. § 220.6(b); Forest Serv. NEPA Handbook § 31.2. In the absence of a clear requirement that the USFS consider cumulative impacts in its categorical exclusion analysis, the court declines to require consideration of cumulative impacts.
Plaintiff also argues that USFS improperly split the Spring Logs and M9 Projects into two separate projects in order to avoid the acreage limits of their respective CEs. (Pl.'s Mot. at 26-27; Pl.'s Reply at 18-19.) In Alaska Center for the Environment, the Ninth Circuit addressed a plaintiff's argument that USFS was attempting to avoid NEPA review by "breaking proposed actions down into one-year temporary actions so as to fit within the categorical exclusion and not complete an EA." Alaska Ctr., 189 F.3d at 858 n.5. The court rejected this argument, explaining that "[t]he question of whether an action is temporary and fits within the categorical exclusion is a factual determination that implicates substantial agency expertise . . . ." Id. The court held that USFS's "categorization of one-year helicopter permits as temporary is not unreasonable or does not rise to the level of arbitrary and capricious." Id.
Similarly here, whether the Log Springs and M9 projects are sufficiently distinct to qualify as two separate projects under different CEs is a "factual determination that implicates USFS expertise." Id. While USFS created a single BA due to the projects' geographic proximity, (AR at 807), the two projects target different sections of forest, (id. at 817), and the primary aims of the two projects are different, (compare id. at 590 (explaining that the M9 Project is "primarily designed to recover the economic value of salvageable dead trees"), with id. at 694 (explaining that the Log Springs Project is "primarily designed to reduce stand densities through commercial thinning")). Plaintiffs' assertion that every specialist report covered both projects," (Pl.'s Reply at 19), while not at all dispositive on the issue if true, is in fact false, as USFS issued separate silviculture reports for the projects, for example. (AR at 570, 694). Plaintiff thus fails to convince the court that USFS's decision to create two separate projects instead of a single project is "so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Kimbell, 709 F.3d at 846.
Accordingly, summary judgment will be granted in favor of USFS and against plaintiff on plaintiff's claim that USFS's failure to consider cumulative impacts was arbitrary and capricious.
E. Failure to Prepare an EIS
"Under NEPA, an agency must prepare an EIS for any proposed federal action 'significantly affecting the quality of the human environment.'" Kimbell, 709 F.3d at 854 (quoting 42 U.S.C. § 4332(2)(c)). Plaintiff essentially argues that an EIS, rather than an EA, is required for the projects because the projects will significantly affect the environment. (Compl. ¶¶ 146-52; Pl.'s Mem. in Support of Mot. for Summary J. at 36-37 (Docket No. 31).)
Since USFS's decision that the Log Springs and M9 Projects qualify for categorical exclusions was not arbitrary or capricious, USFS's compilation of a project file and issuance of a decision memo satisfy its obligations under NEPA. See 36 C.F.R. § 220.6(e); Salazar, 706 F.3d at 1096 ("Application of a categorical exclusion is not an exemption from NEPA; rather, it is a form of NEPA compliance, albeit one that requires less than where an environmental impact statement or an environmental impact is necessary."). The court will accordingly deny plaintiff's motion for summary judgment and will grant USFS's motion for summary judgment regarding failure to prepare an EIS for the Log Springs and M9 Projects.
As for the Tatham Project, plaintiff "asks this court to conclude, without the benefit of even an EA," that the Tatham Project will have significant impacts sufficient to require an EIS. See Citizens for Better Forestry v. U.S. Dept. of Agric., 481 F. Supp. 2d 1059, 1088-89 (N.D. Cal. 2007). Plaintiff "put[s] the cart before the horse, and request[s] that the court make a finding regarding the precise nature of and exact foreseeability of significant effects in this case, when all that is required to render the CE inappropriate is the possibility of significant effects." Id. at 1088. Here, as in Citizens, because a CE was invoked and thus no EA was prepared to consider whether significant effects would exist, USFS "did not create a record that enable this court to make the type of determination that [plaintiff] now seeks." Id. "[T]he court should not make the determination requested by [plaintiff] without such a record." Id. Only after preparation of an EA will the matter be ready for judicial review, id. at 1090, and if USFS chooses to prepare an EIS, this claim would be moot. Accordingly, the court will defer consideration of whether the Tatham Project requires an EIS.
IT IS THEREFORE ORDERED that:
(1) plaintiff's motion to defer consideration of its ESA claims under Federal Rule of Civil Procedure 56(d) be, and the same hereby is, GRANTED;
(2) with respect to the Log Springs and M9 Projects, plaintiffs' motion for summary judgment is DENIED and USFS's motion for summary judgment is GRANTED; and
(3) with respect to the Tatham Project, plaintiffs' motion for summary judgment is GRANTED and USFS's motion for summary judgment is DENIED. USFS shall not begin its proposed actions on the Tatham Project without the preparation and consideration of legally adequate documentation under NEPA.
Within fourteen days of this Order, the parties shall submit a joint Status Report conforming to the April 26, 2013 Stipulation Scheduling Order, or explaining why the court should modify that Scheduling Order.
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WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE