Bark et al v. Northrop et al

Second Motion for Summary Judgment . Oral Argument requested.

D. Or.February 27, 2017

Oliver J. H. Stiefel, OSB No. 135436 oliver@crag.org – (503) 227-2212 Ralph O. Bloemers, OSB No. 984172 ralph@crag.org – (503) 525-2727 Christopher G. Winter, OSB No. 984355 chris@crag.org – (503) 525-2725 Crag Law Center 917 SW Oak Street, Suite 417 Portland, OR 97205 Fax: (503) 296-5454 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION BARK, an Oregon non-profit corporation, FRIENDS OF MOUNT HOOD, an Oregon non-profit corporation, NORTHWEST ENVIRONMENTAL DEFENSE CENTER, an Oregon non-profit corporation, THE SIERRA CLUB, a California non-profit corporation, Plaintiffs, v. LISA NORTHROP, Forest Supervisor of the Mt. Hood National Forest, BILL WESTBROOK, Zigzag District Ranger, JIM PEÑA, Regional Forester for Region 6, and the UNITED STATES FOREST SERVICE, a federal agency; WILLIAM STELLE, Regional Administrator of the West Coast Region, and the NATIONAL MARINE FISHERIES SERVICE, a federal agency, Defendants, RLK AND COMPANY, an Oregon corporation, Defendant-Intervenor. Case No. 3:13-cv-00828-AA PLAINTIFFS’ SECOND MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 1 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - i Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 MOTION Plaintiffs Bark, Friends of Mount Hood, Northwest Environmental Defense Center, and the Sierra Club (collectively, “Plaintiffs”) hereby submit their Second Motion for Summary Judgment and Memorandum in Support. Pursuant to Local Rule 7-1, the undersigned certifies that the Parties have made a good faith effort to resolve the dispute but were unable to do so. Plaintiffs respectfully move the Court for an Order granting Plaintiffs summary judgment on Claims Eleven and Twelve of their Third Supplemental/Amended Complaint, ECF_204. Claims Eleven and Twelve plead Administrative Procedure Act (“APA”), 5 U.S.C. § 706, challenges to the final agency actions of the Defendants Lisa Northrop, Bill Westbrook, Jim Peña, and the United States Forest Service (“Forest Service”), and William Stelle and the National Marine Fisheries Service (“NMFS”) in their ongoing review and approval of a proposal by Defendant-Intervenor RLK and Company (“RLK”) to develop a lift-assisted mountain biking facility within the Timberline Ski Area (the “Project” or “bike facility”). Specifically, Plaintiffs challenge the Forest Service’s decisions and continued failure to prepare a supplemental analysis under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., despite significant new circumstances and information about the Project’s environmental impacts that were not disclosed and analyzed in the original environmental review and approval of the Project in 2012. Plaintiffs also challenge the Biological Opinion (“BiOp”) prepared by NMFS after it reinitiated consultation under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., over impacts to threatened Lower Columbia River (“LCR”) steelhead. In a concurrently filed Motion for Partial Reconsideration, Plaintiffs also ask the Court to reconsider its Opinion and Order of March 25, 2016 and grant Plaintiffs summary judgment on their National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq., claim. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 2 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - ii Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 Plaintiffs respectfully request that this Court grant them declaratory and injunctive relief, including: 1. Vacate and set aside any and all Forest Service determination(s) that no supplemental NEPA analysis is warranted or required, and compel the Forest Service to prepare supplemental NEPA analysis on the basis of significant new circumstances and information; 2. Declare that NMFS has violated the ESA by issuing a Biological Opinion that fails to ensure that actions will not jeopardize the continued existence of LCR steelhead or destroy or adversely modify its Critical Habitat; 3. Vacate and set aside the Biological Opinion for the Project and enjoin NMFS to re-initiate formal consultation; 4. Grant Plaintiffs appropriate permanent injunction relief preventing the Forest Service and NMFS from implementing the Project until the agencies comply with all applicable laws and regulations; 5. Award to Plaintiffs their costs, expenses, expert witness fees, and reasonable attorneys fees under applicable law; and 6. Grant Plaintiffs such further relief as may be just, proper, and equitable. In support of this motion, Plaintiffs respectfully submit to the Court the following Memorandum in Support. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 3 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - iii Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 MEMORANDUM TABLE OF CONTENTS TABLE OF AUTHORITIES ………………………………………………………...………….. v TABLE OF ACRONYMS …………………………………………………………………….. vii INTRODUCTION …………………………………………………………………...………….. 1 FACTUAL BACKGROUND ……………………………………………..…………………….. 2 I. The Forest Service Approved the Project in 2012 ……………………...……….. 2 II. New Circumstances and Information Arose After the Close of the Forest Service’s NEPA Process Relating to LCR Steelhead and the Bumblebee …………………………………………………...………….. 3 III. Additional New Circumstances and Information Arose After the First Round of Summary Judgment Briefing …………………………...……….. 5 LEGAL FRAMEWORK ………………………………………………………………...……… 8 I. National Environmental Policy Act ……………………………………..………. 8 II. Endangered Species Act ……………………………………………..………….. 9 STANDARD OF REVIEW ……………………………………………………...…………….. 10 ARGUMENT ……………………………………………………………………….………….. 10 I. The Forest Service Has Violated NEPA By Failing to Supplement its 2012 Analysis ……………………………………………………..………… 11 A. The significant new circumstances and information surrounding LCR steelhead require NEPA supplementation ………..… 12 1. The 2014 NIR is arbitrary because the NLAA and LAA determinations are not compatible …………….…….. 13 2. The 2016 NIR is arbitrary because the NLAA and LAA discrepancy is still present, and additional new circumstances and information underscore the need for supplemental NEPA review ……….……………………….. 16 Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 4 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - iv Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 B. The significant new circumstances and information surrounding the Western bumblebee require NEPA supplementation ………………. 18 1. There is an extensive collection of new circumstances and information …….……………………………………………….. 19 2. The agency’s substantive determinations go well beyond the allowable scope of a post-NEPA review, and are arbitrary in any event ……………………………………….….. 21 II. NMFS Failed to Ensure that the Project is Consistent with the Aquatic Conservation Strategy ………………………………………………………….. 25 1. The duty to ensure ACS consistency emanates from the Programmatic BiOp …………………………………………...……….. 26 2. A series of cases confirm the duty to ensure project-level ACS consistency ………………………………………………..……… 27 3. NMFS failed to ensure ACS consistency, erroneously believing instead that it was free to perform an “independent” site-specific jeopardy analysis …………………………………………. 29 CONCLUSION ……………………………………………………………………………..….. 34 TABLE OF CITATIONS ……………………………………………………………….……..… I Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 5 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - v Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 TABLE OF AUTHORITIES CASES Am. Rivers v. NMFS, 126 F.3d 1118 (9th Cir. 1997) ................................................................................................... 10 Cascadia Wildlands Proj. v. U.S. FWS, 219 F. Supp. 2d 1142 (D. Or. 2002) .............................................................................. 26, 27, 28 Cascadia Wildlands v. U.S. BLM, No. 6:12-cv-00095-AA, 2012 U.S. Dist. LEXIS 182930 (D. Or. Dec. 21, 2012) .............. 21, 22 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) .................................................................................................................. 10 Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157 (9th Cir. 2003) ................................................................................................. 8, 9 Friends of the Clearwater v. Dombeck, 222 F.3d 552 (9th Cir. 2000) ..................................................................................................... 22 Idaho Sporting Cong. v. Alexander, 222 F.3d 562 (9th Cir. 2000) ..................................................................................................... 22 Idaho Sporting Cong. v. Thomas, 137 F.3d 1146 (9th Cir. 1998) ................................................................................................... 23 Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989) ............................................................................................................ 13, 19 Mtr. Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .................................................................................................................... 10 N. Idaho Cmty Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147 (9th Cir. 2008) ..................................................................................................... 8 Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468 (9th Cir. 1994) ..................................................................................................... 10 Olympic Forest Coal. v. U.S. Forest Serv., 556 F. Supp. 2d 1198 ................................................................................................................ 29 Or. Nat. Res. Council Fund v. Goodman, 505 F.3d 884 (9th Cir. 2007) ..................................................................................................... 10 Oregon Natural Desert Association v. Sabo, Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 6 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - vi Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 854 F. Supp. 2d 889 (D. Or. 2012) ............................................................................................ 21 Pacific Coast Federation of Fishermen’s Associations v. NMFS, No. C97-775R, 1998 U.S. Dist. LEXIS 23784 (W.D. Wash. May 29, 1998) .............. 27, 28, 32 Pacific Coast Federation of Fishermen’s Associations v. NMFS, 71 F. Supp. 2d 1063 (W.D. Wash. 1999) ............................................................................ 27, 28 Pacific Coast Federation of Fishermen’s Associations v. NMFS, 265 F.3d 1028 (9th Cir. 2001) ........................................................................... 25, 27, 28, 31, 32 Pacific Coast Federation of Fishermen’s Associations v. NMFS, 482 F. Supp. 2d 1248 (W.D. Wash. 2006) .................................................................... 26, 27, 29 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) .................................................................................................................... 8 Wildlands v. U.S. Forest Serv., 791 F. Supp. 2d 979 (D. Or. 2011) ...................................................................................... 15, 16 STATUTES 5 U.S.C. § 706 ............................................................................................................................... 10 16 U.S.C. § 1531 ............................................................................................................................. 9 16 U.S.C. § 1532 ......................................................................................................................... 3, 9 16 U.S.C. § 1536. ............................................................................................................................ 9 42 U.S.C. § 4332 ............................................................................................................................. 9 REGULATIONS 40 C.F.R. § 1500.1 ........................................................................................................................ 23 40 C.F.R. § 1502.9 .................................................................................................. 9, 11, 14, 18, 25 50 C.F.R. § 17.3 .............................................................................................................................. 9 50 C.F.R. § 402.02 ........................................................................................................................ 10 50 C.F.R. § 402.13 .................................................................................................................... 9, 10 50 C.F.R. § 402.14 .................................................................................................................... 9, 10 Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 7 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - vii Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 OTHER AUTHORITIES 65 Fed. Reg. 42,422 (July 10, 2000) ............................................................................................... 9 81 Fed. Reg. 14058 (Mar. 16, 2016) ................................................................................... 7, 20, 24 Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 8 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - viii Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 TABLE OF ACRONYMS ACS Aquatic Conservation Strategy APA Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. BiOp Biological Opinion DN Decision Notice EA Environmental Assessment EIS Environmental Impact Statement ESA Endangered Species Act, 16 U.S.C. §§ 1531 et seq. FONSI Finding of No Significant Impact FWS U.S. Fish and Wildlife Service ITS Incidental Take Statement LCR Lower Columbia River LAA Likely to Adversely Affect LRMP Land and Resource Management Plan NEPA National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. NFMA National Forest Management Act, 16 U.S.C. §§ 1600 et seq. NIR New Information Review NLAA Not Likely to Adversely Affect NMFS National Marine Fisheries Service NWFP Northwest Forest Plan PDC Project Design Criteria RLK RLK and Company, Inc. SUP Special Use Permit Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 9 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 1 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 INTRODUCTION This case involves an APA challenge to the final decisions of the Forest Service and NMFS approving a lift-assisted mountain biking facility within the Timberline Ski Area. Located on the southwestern slopes of Mt. Hood, the Project involves construction and operation of 17 miles of mountain biking routes through sensitive high-elevation meadows and fragile headwater streams that would degrade subalpine and riparian habitat for LCR steelhead, listed as threatened under the ESA, and the Western bumblebee, designated as a Forest Service Region 6 Sensitive Species. In the present motion, Plaintiffs amend and supplement their original claims under NEPA and the ESA that were stayed by the Court in a March 25, 2016 Opinion and Order, ECF_192.1 Following the Court’s Opinion and Order, NMFS prepared a revised BiOp, and the Forest Service conducted additional process and determined that supplemental NEPA analysis is not required. Plaintiffs challenge the findings and conclusions of the federal agencies as arbitrary, capricious, and contrary to legal protections for imperiled species and watershed health. Specifically, Plaintiffs challenge the Forest Service’s continued failure to supplement a NEPA analysis that is more than four years old, despite significant new circumstances and information on the scope and magnitude of the Project’s impacts on LCR steelhead and the Western bumblebee. Plaintiffs also challenge NMFS’s continued failure to confirm consistency with the Aquatic Conservation Strategy, despite the plain requirements of NMFS’s own programmatic BiOp and Circuit precedent. /// /// 1 In a concurrently filed motion, Plaintiffs respectfully ask the Court to reconsider its holding under NFMA. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 10 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 2 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 FACTUAL BACKGROUND This Court is familiar with the facts of the case and Plaintiffs present only those facts pertinent to the current motion, including (1) a recap of the factual background relevant to the ESA and supplemental NEPA claims stayed by the Court in its March 25, 2016 Opinion and Order, and (2) a summary of new developments that have occurred since completion of the first round of summary judgment briefing in June of 2015, which developments augment Plaintiffs’ ESA and supplemental NEPA claims. A more detailed factual background of the case can be found at pages 1–13 of Plaintiffs’ Motion for Summary Judgment. ECF_118 at 13–24. I. The Forest Service Approved the Project in 2012. The Forest Service approved the Project on November 19, 2012 with the issuance of an EA, DN, and FONSI. FS_27731–28084; FS_28085–28108.2 As analyzed by the Forest Service, the Project has three components: (1) construction of the bike facility; (2) annual operation and maintenance; and (3) watershed restoration actions. FS_24004–11. The restoration activities (which are now essentially complete) were unrelated to the bike facility, and instead, targeted native surface roads within the Timberline ski area. See FS_27754; FS4thSUPP_6059. Of particular salience to the present motion, the Forest Service in its EA/DN/FONSI concluded that the Project was “Not Likely to Adversely Affect” (“NLAA”) listed LCR steelhead. FS_28092. The Forest Service determined that, with the implementation of the restoration measures, all impacts to LCR steelhead and its Critical Habitat would be insignificant or discountable. FS_24051. In consultation under Section 7 of the ESA, NMFS concurred with the Forest Service’s NLAA determination. FS_23464–85. As to the bumblebee, the Forest Service did not mention the species in its NEPA documents, so the public was never made aware 2 A Table of Citations is appended to this brief, with a crosswalk between all cited documents and their location in the various iterations of the Administrative Records for this case. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 11 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 3 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 of the species’ presence in the Project area, or the Project’s likely impacts on key habitat. II. New Circumstances and Information Arose After the Close of the Forest Service’s NEPA Process Relating to LCR Steelhead and the Bumblebee. Significant developments relating to LCR steelhead and the bumblebee occurred in 2013 and 2014, after the Forest Service had completed its environmental review of the Project under NEPA and issued its final decision. Under NEPA, agencies have a continuing duty to evaluate whether new circumstances and information are “significant” so as to require supplementation of the original analysis. Regarding LCR steelhead, on December 23, 2013, Plaintiffs sent the Forest Service and NMFS a Notice of Intent to Sue for violations of Section 7. NMFS_133–43. Plaintiffs alleged the EA/DN/FONSI did not accurately describe the level of the Project’s impacts this threatened species.3 After receiving the notice, NMFS “revisited” its concurrence, and the agencies opted to engage in formal Section 7 consultation, rather than defend their NLAA determinations in court. See NMFS_731. NMFS issued a BiOp on August 5, 2014 (the “2014 BiOp”). NMFS_727–99. The BiOp catalogued a host of Project-related impacts, and NMFS determined that the Project was Likely to Adversely Affect LCR steelhead and Critical Habitat to the degree the Project would cause direct impacts to LCR steelhead at the Project level. See NMFS_729, 769.4 On September 18, 2014, the Forest Service issued a “New Information Review” (“NIR”), 3 The Project would affect the Sandy River Population, part of the Cascade Winter stratum of LCR steelhead. See NMFS2AR_1654. The Sandy River Population is classified as having a “high risk of extinction,” but is considered a “core” population for recovery efforts. NMFS2AR_1654–55. Still Creek, which originates in and flows through the Project area, is designated as Critical Habitat for LCR steelhead. NMFS2AR_1648; see also NMFS2AR_1657 (map showing designated Critical Habitat in relation to Project area). “Critical Habitat” represents those specific areas that are (1) essential to the conservation of the species and (2) which may require special management considerations or protections. 16 U.S.C. § 1532(5)(a)(1). 4 At the species level, NMFS concluded the Project was not likely to jeopardize LCR steelhead’s continued existence or destroy or adversely modify its Critical Habitat. NMFS_773. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 12 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 4 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 concluding that no supplemental NEPA analysis was necessary. FS2ndSUPP_4246 (“2014 NIR”). Despite NMFS’s change in position from NLAA to LAA, the Forest Service found the effects disclosed and considered by NMFS in the BiOp to be within the range of effects considered in the EA/DN/FONSI. FS2ndSUPP_4244. Regarding the bumblebee, a series of new circumstances and information cast a shadow on EA/DN/FONSI’s lack of analysis of the species. In 2011, the Forest Service, Region 6 designated the bumblebee a Sensitive Species on account of significant current or predicted downward trends in population numbers or density and significant current and/or predicted downward trends in habitat capability that would reduce the species’ existing distribution. See SUPP_1451. New scientific studies and reports corroborate the designation, showing that the bumblebee has experienced a rapid and dramatic decline across its range, are being pushed to the brink of extinction by a variety of biological and human-caused factors, and that extant populations are restricted to high elevation sites. FS2ndSUPP_29, 34, 275. On account of the documented decline in the species’ range and abundance, in 2013, the Xerces Society for Invertebrate Conservation (“Xerces”), a nonprofit conservation and science organization, surveyed meadows on Mt. Hood for the bumblebee. See FS2dSUPP_272. Xerces biologists located the species within the Project area. FS2dSUPP_272, 282. Given bumblebee sightings in the Project area, and in light of the alarming recent decline of the species, Xerces biologists sent a letter to the agency expressing concern over the Project’s potential impacts on the bumblebee, explaining that “high elevation sites are a critical sanctuary for this species,” and recommending protection of “every known population in these areas.” FS2dSUPP_4465. The Forest Service reviewed the Xerces survey and recommendations and issued an NIR on December 19, 2013 concluding that supplemental NEPA analysis was not necessary. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 13 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 5 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 FS2dSUPP_0889 (“2013 NIR”). The agency found that “the effects of implementing the Proposed Action are still consistent with the findings in the 2012 EA” and that the new survey data is “within the scope and range of the effects considered in the original analysis.” FS2dSUPP_0889. The original analysis did not once mention the bumblebee. III. Additional New Circumstances and Information Arose After the First Round of Summary Judgment Briefing. Still more developments bearing on the Project’s environmental impacts occurred in 2015 and 2016. Restoration work, ongoing since 2013, was completed in the summer of 2015. On September 14, 2015, the Forest Service notified NMFS that summer 2015 work took place that was inconsistent with a term and condition of the 2014 BiOp related to riparian disturbance. See NMFS2AR_22–24. Specifically, restoration work at the Glade Trail was not pre-flagged (i.e., the disturbance boundaries were not demarcated) prior to disturbance work. See NMFS2AR_22. The Court held argument on November 9, 2015. See Exhibit 1 (transcript of hearing).5 Following the hearing, on November 13, 2016, the Forest Service followed up with NMFS by email, clarifying an additional violation of the terms and conditions of the 2014 BiOp. Specifically, riparian disturbance from 2015 restoration activities had exceeded the amount permissible under terms and conditions limiting disturbance to 1.54 acres. NMFS2AR_25. On December 16, 2015, NMFS sent a letter to the Forest Service recommending reinitiation of consultation, on account of the violations of the 2014 BiOp. NMFS2AR_168–69. The Forest Service responded to NMFS and formally requested reinitiation. NMFS2AR_171. Upon learning of reinitiation, Plaintiff Friends of Mount Hood sent a letter to NMFS along with a packet of information providing additional details on the nature and extent of 2015 restoration activities in the Project Area. See NMFS2AR_182–452. Friends of Mount Hood wrote that, 5 The Parties completed briefing on cross-motions for summary in June of 2015. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 14 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 6 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 from documents received in response to FOIA requests, and through multiple site visits to the Project Area in the fall of 2015, they determined that riparian disturbances during the course of restoration activities appeared to have occurred with greater frequency and to a greater extent than originally anticipated. NMFS2AR_182–83. In an Opinion and Order issued on March 25, 2016, the Court resolved claims NEPA and NFMA in favor of Federal Defendants. Given the pending reinitiation of consultation, and the prospect of a new or revised BiOp, the Court stayed resolution of the case with respect to Plaintiffs’ claims related to LCR steelhead. Specifically, the Court stayed Plaintiffs’ claims challenging the 2014 BiOp under the ESA, and Plaintiffs’ claims that the Forest Service failed to supplement its environmental analysis under NEPA. See ECF_192 at 9. NMFS issued a follow-up BiOp on August 4, 2016 (the “Reinitiation BiOp.”). NMFS again concluded that the Project is Likely to adversely affect LCR steelhead. NMFS2AR_1636.6 Given the completion of restoration activities, the Reinitiation BiOp decoupled restoration from the construction and components of the Project. The Forest Service in the EA/DN/FONSI, and NMFS in the 2014 BiOp, had analyzed the effect of a “single Proposed Action”—i.e., the aggregate impacts of construction, operation, and restoration. NMFS2AR_1640. In contrast, NMFS in the Reinitiation BiOp evaluated only the construction and operation components of the Project when determining the effects to LCR steelhead and Critical Habitat. Id.; see also NMFS2AR_1642 (describing “revised” proposed action consisting of two project elements: construction of the bike facility and long-term operation and maintenance).7 The Reinitiation BiOp states that trail construction and operation would reduce the 6 NMFS again concluded at the species level that the Project was not likely to jeopardize LCR steelhead or destroy or adversely modify its designated Critical Habitat. 7 NMFS considered the restoration activities as part of the environmental baseline. NMFS2AR_1640. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 15 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 7 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 quantity and quality of LCR steelhead habitat features. NMFS2AR_1677. NMFS reports that (1) bike facility construction may cause fine sediment inputs to increase enough to temporarily affect steelhead distribution within the Project Area, reduce spawning ground quality, limit egg and fry success, reduce pool volume, and reduce prey availability due to increased substrate embeddedness; and (2) that operation and maintenance will annually result in the delivery of increased suspended sediments for the life of the Project. NMFS2AR_1676. Following issuance of the Reinitiation BiOp, the Forest Service began a 90-day process of evaluating that document, as well as additional survey data with regard to the bumblebee on the Mt. Hood National Forest. On October 13, 2016, the Forest Service posted a “Dear Citizen” letter on its website requesting comments with regard to the agency’s tentative findings that supplemental NEPA process is not required despite the new information regarding the bumblebee and the Reinitiation BiOp. FS4thSUPP_5023. The Forest Service also reported that nearly all of the restoration work was completed during the 2013–2015 field seasons. Id. The Forest Service set a deadline of October 31, 2016 for interested parties to submit comments, and Plaintiffs timely submitted comments. FS4thSUPP_5340–48. Plaintiffs requested that the agency prepare supplemental NEPA given the presence of significantly changed circumstances resulting from the completion of the restoration work and significant new information bearing on the Project’s impacts, and on account of the length of time since publication of the EA in 2012. See id. Plaintiffs provided detailed feedback on the implementation of the 2015 restoration activities, and pointed out that the U.S. Fish and Wildlife Service determined that substantial scientific or commercial information indicates that listing the bumblebee under the ESA may be warranted. See id.; see also 81 Fed. Reg. 14058, 14071 (Mar. 16, 2016). In an NIR dated December 14, 2016, the Forest Service decided that a correction, Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 16 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 8 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 supplement, or revision to the 2012 EA is not required under NEPA. FS4thSUPP_6058–63 (“2016 NIR”). The 2016 NIR focused narrowly on the “new information reflected in the 2016 [BiOp] that was not in the original BiOp, as well as the information gathered from the recently completed season of bee surveys,” FS4thSUPP_6059—rather that the sum total of new developments since the 2012 EA. Plaintiffs filed an Amended/Supplemental Complaint on January 26, 2017. ECF_204. Plaintiffs’ ESA and supplemental NEPA claims are ripe for review. LEGAL FRAMEWORK I. National Environmental Policy Act NEPA is our nation’s charter for protecting the environment. N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1153 (9th Cir. 2008). It prescribes the necessary procedures an agency must undertake to ensure that the “agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of the decision.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). While it imposes no substantive obligations, NEPA does “establish action- forcing procedures that require agencies to take a hard look at environmental consequences.” Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir. 2003). The Council on Environmental Quality (“CEQ”) issued regulations prescribing the procedures agencies must take and the considerations agencies must take into account when carrying out NEPA duties. See 40 C.F.R. §§ 1500 et seq. “The procedures prescribed both in NEPA and the implementing regulations are to be strictly interpreted ‘to the fullest extent Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 17 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 9 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 possible’ in accord with the policies embodied in the Act.” Biological Diversity, 349 F.3d at 1166 (citing 42 U.S.C. § 4332(1)). Under CEQ regulations, agencies must supplement their NEPA analyses if there are “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(ii). II. Endangered Species Act Congress enacted the ESA to “provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved [and] to provide a program for the conservation of such endangered species and threatened species * * *.” 16 U.S.C. § 1531(b). Section 9 of the ESA prohibits the “take” of listed species.8 Section 7 of the ESA imposes procedural and substantive duties on federal agencies. Procedurally, federal agencies must engage in consultation with NMFS if a proposed action may affect listed species or Critical Habitat. Id. § 1536(a)(2); 50 C.F.R. § 402.14(a). Substantively, federal agencies must ensure that their actions are “not likely to jeopardize the continued existence of any [listed] species or result in the destruction or adverse modification of [Critical Habitat].” 16 U.S.C. § 1536(a)(2). When evaluating a proposed project under Section 7, the federal agency (“action agency”) must make a preliminary effects determination. 50 C.F.R. § 402.14(a)–(b). If the action agency decides that the proposed action may affect, but is not likely to adversely affect a listed species, the agency may engage in information consultation with NMFS. Id. §§ 402.13, 402.14(b). If NMFS concurs with the action agency, the consultation process is concluded. Id. 8 Section 9 applies to LCR steelhead. 65 Fed. Reg. 42,422 (July 10, 2000). “Take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct.” 16 U.S.C. § 1532(19). “Harm” includes “habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 18 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 10 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 §§ 402.13, 402.14(b)(1). “Formal consultation” is required when the action agency determines that its action is likely to adversely affect a listed species, or if NMFS does not concur in the NLAA determination. Id. § 402.14. Formal consultation requires NMFS to formulate a BiOp determining whether the proposed action is likely to jeopardize the continued existence of a listed species or adversely modify its Critical Habitat. Id. §§ 402.14(g), 402.02. STANDARD OF REVIEW The Ninth Circuit endorses the use of Rule 56 summary judgment motions to resolve claims brought pursuant to the APA, 5 U.S.C. §§ 701–06. See Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1471–72 (9th Cir. 1994). Plaintiffs’ NEPA and ESA claims are brought under the arbitrary and capricious standard of the APA, 5 U.S.C. § 706(2). Or. Nat. Res. Council Fund v. Goodman, 505 F.3d 884, 889 (9th Cir. 2007); Am. Rivers v. NMFS, 126 F.3d 1118, 1124–25 (9th Cir. 1997). The agency must “articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Mtr. Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Agency action is arbitrary and capricious where the agency: relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. In applying this standard of review, courts are to conduct a “thorough, probing, in depth review.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1971). ARGUMENT Plaintiffs’ claims in round two of summary judgment underscore and further flesh out their long-standing position that the Forest Service has a duty to supplement its NEPA analysis Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 19 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 11 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 and that NMFS has a duty to ensure Project consistency with the Aquatic Conservation Strategy of the Northwest Forest Plan. In 2014, Plaintiffs put the Forest Service on notice that the significant new circumstances and information relating to two imperiled species—the threatened LCR steelhead, and the Sensitive Western bumblebee—must be addressed in a supplemental NEPA analysis. Since that time, the evidence in support of supplemental NEPA continues to mount up and continues to erode the Forest Service’s original determinations about the limited scope of the Project’s impacts. Yet, the Forest Service steadfastly refuses to update a stale NEPA analysis that is now more than four years old. Moreover, in 2013, Plaintiffs sent NMFS a Notice of Intent to Sue under the ESA, challenging, inter alia, NMFS’s failure to undertake an analysis of the Project’s consistency with the Aquatic Conservation Strategy—as required by NMFS’s own programmatic documents and Circuit precedent. NMFS now in three separate Section 7 consultations has failed to fulfill this straightforward duty. Because the agencies still have failed to consider important aspects of the harms caused by the Project, their environmental analyses and decision documents are arbitrary, capricious, and contrary to law. I. The Forest Service Has Violated NEPA By Failing to Supplement its 2012 Analysis. Plaintiffs’ eleventh claim for relief challenges the Forest Service’s continued failure to supplement its NEPA analysis in light of significant new circumstances and information bearing on the Project’s environmental impacts. See 40 C.F.R. § 1502.9(c)(1)(ii). When the Forest Service published its EA and signed the DN/FONSI in 2012, the understanding of the Project’s impacts on LCR steelhead and the bumblebee was materially different than now. In the NEPA analysis, the Forest Service concluded that the impacts of the project were Not Likely to adversely affect LCR steelhead, a conclusion now undermined by expert fish agency’s determination of Likely adverse effects. Moreover, the 2012 EA does not even mention the bee, Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 20 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 12 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 but post-decisional developments have revealed the presence of the species in the Project area, and the potential for the bike facility to have population-level impacts. Finally, the fact that nearly all of the restoration work has been completed offers the Forest Service the chance to take a fresh look at the impacts from construction and operation of the bike facility. Indeed, this was the approach taken by NMFS in the Reinitiation BiOp, revealing the heavy impacts to habitat resulting from implementation of the bike facility. A. The significant new circumstances and information surrounding LCR steelhead require NEPA supplementation. The Forest Service’s EA/DN/FONSI do not accurately describe the degree of the Project’s impacts on threatened LCR steelhead. Specifically, the Forest Service told the public that the project was Not Likely to Adversely Affect the species, and cited NMFS’s letter of concurrence for support. See FS_27849, 28092, 23464. Now, four years later, NMFS has changed its position and expressly found in two separate BiOps that the Project is Likely to Adversely Affect the species. NMFS’s findings and conclusions present a seriously different picture than what the Forest Service disclosed to the public and factored into its overall analysis. In the 2014 NIR, the Forest Service considered NMFS’s change in position, and concluded that the new information and findings in the 2014 BiOp are “within the scope and range” of effects considered in the NEPA analysis. FS2dSUPP_4244. The 2016 NIR focuses on the “new information reflected in the August 2016 biological opinion that was not in the original biological opinion,” and the Forest Service carried forward its original “scope and range” determination. FS4thSUPP_6059, 6062. Both of the NIRs are arbitrary, capricious, and contrary to law. The Forest Service’s duty to prepare supplemental NEPA was triggered after NMFS’s original change in position and the issuance of the 2014 BiOp, and was triggered again after the NMFS in the Reinitiation BiOp decoupled restoration activities from construction and operation Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 21 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 13 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 of the bike facility, and confirmed that the Project is likely to adversely affect LCR steelhead to the extent that “take” is reasonably likely to occur. 1. The 2014 NIR is arbitrary because the NLAA and LAA determinations are not compatible. The discrepancy between the Forest Service’s original NLAA determination and NMFS’s subsequent LAA determination triggers the need for supplemental NEPA, so that the full range of the Project’s impacts on a threatened species are disclosed and analyzed in accordance with NEPA’s action forcing procedures. See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 374 (1989) (supplemental NEPA required where new information shows a project will affect the environment to a significant extent or to a significant degree not already considered). The Forest Service’s determination that NMFS’s findings and conclusions (that the Project is likely to adversely affect LCR steelhead and cause take) somehow fits “within the scope” of the original analysis’s finding of “insignificant” effects is arbitrary and contrary to law. The Forest Service’s NLAA conclusion was premised on findings that the Project would cause only “insignificant” or “discountable” effects.9 See FS_28024; see also FS_29320 (citing NMFS’s concurrence with the NLAA determination: “NOAA Fisheries concurred with this determination * * * and stated that they [sic] concluded that ‘all effects of the action, as proposed are insignificant or discountable’”). The Forest Service found the Project would have a “neutral” impact on aquatic habitat; that Project Design Criteria would minimize “if not eliminate” effects to habitat or individual LCR steelhead; and that there was a “very small potential” for the Project to contribute sediment to occupied LCR steelhead habitat. FS_29304, 29305, 29307. For these reasons, the Forest Service in the EA concluded that “the proposed action May Affect, Not 9 “Insignificant” effects in this context “relate to the size of the impact and should never reach the scale where take occurs.” ESA Section 7 Consultation Handbook (“ESA Handbook”) (Mar. 1998), at 3-12. “Discountable” effects are those extremely unlikely to occur. Id. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 22 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 14 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 Likely to Adversely Affect LCR steelhead trout and designated Critical Habitat * * *.” FS_27849. In stark contrast, NMFS in the 2014 BiOp concluded that the Project is likely to adversely affect species and Critical Habitat. NMFS_729. NMFS found that trail construction, and operation and maintenance would “negatively affect LCR steelhead and Critical Habitat through increased fine sediment to an already degraded habitat.” NMFS_769. While the Forest Service found that impacts from construction and operation of the bike trails—coupled with the restoration activities—would not adversely affect any LCR steelhead habitat indicators, see FS_28024 (“All indicators had a summary determination of Insignificant or Discountable. No direct effects were identified to listed fish or Critical Habitat.”), NMFS issued an Incidental Take Statement, finding that “rearing and migrating juvenile LCR steelhead are reasonably certain to be present in the action area during likely periods of measurable sediment delivery in Still Creek (i.e., October and November) and in springtime when spawning adults are likely to be present.” NMFS_774; see also NMFS_769 (“The fine suspended sediments generated as part of the proposed action may affect salmon and steelhead and cause direct physical damage.”).10 10 It is not only the difference between the ultimate conclusions of the two agencies that are significant for purposes of supplemental NEPA, although the conclusions alone are sufficient to trigger the Forest Service’s duties under 40 C.F.R. § 1502.9(c)(1)(ii). Indeed, NMFS’s BiOps contain a great deal of information and scientific findings that were not analyzed by the Forest Service and disclosed to the public in the NEPA analysis. For example, there are key differences about the status of LCR steelhead. Compare NMFS_771 (Sandy River population has a “high risk of extinction”) and NMFS_749 (average return of 777 spawners) with FS_27834 (no disclosure of extinction risk; average return “is around 1500”). Moreover, the Reinitiation BiOp summarizes fine sediment impacts in detail, in terms of the baseline and the measureable increases caused by the Project. See NMFS2AR_1676–79. NMFS recalibrated its turbidity incidental take surrogate based on a better understanding of fine sediment conditions. NMFS2AR_1684–85 n. 18; see also NMFS2AR_744 (“It seemed like the judge needed a little help in understanding the story putting the turbidity NTU discussion in context.”). In contrast, the Forest Service acknowledged, “[b]aseline NTU is not discussed in the EA or Hydro Specialist [Report] specifically * * *.” NMFS2AR_744. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 23 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 15 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 On review of the new circumstances and information, however, the Forest Service in the 2014 NIR summarily determined that NMFS’s findings and conclusions were “within the scope and range of effects” of the NEPA analysis. See FS2dSUPP_4244. This conclusion cannot withstand scrutiny or be squared with NMFS’s findings and conclusions. The Forest Service’s NEPA analysis supported an NLAA determination based on insignificant and discountable effects and no direct effects to individual fish or Critical Habitat; NMFS’s findings and conclusions of short- and long-term sediment impacts rising to the level of take fall well outside the range of effects disclosed and considered in the Forest Service’s NEPA analysis. This district already has addressed the present issue and decided that supplemental NEPA is required in these circumstances. See Wildlands v. U.S. Forest Serv., 791 F. Supp. 2d 979, 991 (D. Or. 2011) (holding that the acknowledgement that the original NLAA determination was incorrect “is both new and significant information”). In Wildlands, the Forest Service had approved a timber project based on an NLAA determination for the threatened Northern Spotted owl. See id. at 988 (quoting the EA as stating, “Consultation with the USFWS has resulted in a ‘may affect, but not likely to adversely affect’ determination.”). Subsequent to the Forest Service’s decision, but before project implementation, the NLAA determination was revisited, and it was determined that the project was in fact “likely to adversely affect” the listed species. Id. at 985. Plaintiffs challenged the Forest Service’s failure to supplement the NEPA analysis in these circumstances, and Judge Coffin agreed with the Plaintiffs. Specifically, Judge Coffin found that the “public evaluation process of the proposed agency action and its impact on the environment was skewed by the inaccurate and misleading ‘not likely to adversely impact’ the northern spotted owl determination in the EA.” Id. at 991. While the Forest Service argued that it had disclosed and considered likely adverse impacts in Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 24 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 16 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 the original analysis, the court rejected that position. Id. at 990 (finding that the NLAA determination was a “cornerstone” of the decision). Similarly here, the Forest Service’s original NLAA decision deprived the public of an accurate and complete picture of the Project’s impacts. Because the Forest Service based its decision on the flawed assumption that the Project’s impacts on LCR steelhead would be insignificant, the agency must now reopen the NEPA process to fully evaluate—and disclose to the public—new circumstances and information revealing adverse effects to LCR steelhead. Cf. Wildlands, 791 F. Supp. 2d at 991 (“Central decisions affecting the analysis and approval of the [project] were based on a factual inaccuracy and the public has yet to be informed of the actual findings (LAA as opposed to NLAA) so it can engage in meaningful input.”). 2. The 2016 NIR is arbitrary because the NLAA and LAA discrepancy is still present, and additional new circumstances and information underscore the need for supplemental NEPA review. After NMFS prepared its Reinitiation BiOp—once again concluding LAA and take—the Forest Service reviewed this new development and concluded in the 2016 NIR that NEPA supplementation is not required. The 2016 NIR’s narrow focus and limited conclusions are arbitrary because the Forest Service compounds the errors of the 2014 NIR, and also fails to reconcile additional, significant new circumstances and information that are now present. For one, the 2016 NIR’s main emphasis is simply the alleged differences between the 2014 BiOp and the Reinitiation BiOp, rather than the discrepancies between the Forest Service’s determinations and NMFS’s ultimate findings and conclusions. The 2016 NIR focuses on the numeric “terms and conditions” of the Reinitiation BiOp, and the Forest Service suggests that because the Reinitiation BiOp contains lower thresholds for certain terms and conditions (relating to the allowable disturbance footprint for trail construction, and the turbidity take Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 25 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 17 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 surrogate), it is more “protective” of LCR steelhead. But the fact that the Forest Service concluded NLAA based on a larger disturbance footprint, while NMFS concluded NLAA based on a smaller disturbance footprint only underscores the fact that the two agencies’ ultimate conclusions about the scope and magnitude of impacts are irreconcilable. The 2016 NIR also diverts attention from the actual content of the Reinitiation BiOp by highlighting the reason behind reinitiation. That is, the 2016 NIR focuses on the restoration contractor’s failure to comply with a required term and condition of the 2014 BiOp—related to pre-disturbance flagging—that led to an exceedance of the allowable disturbance footprint. FS4thSUPP_6060 n.1; see FS4thSUPP_6062 (“The only real new points identified that the Forest had not previously considered relate to the additional environmental effects that resulted from the unauthorized disturbance of four-hundredths of one acre with a Riparian Reserve during implementation of a restoration element of the project.”). The Forest Service dismissed this new information, finding that the take exceedance only resulted in “de minimus” impacts. FS4thSUPP_6062.11 That observation is a red herring, distracting from the fact that the Reinitiation BiOp carries forward NMFS’s conclusions of LAA and take. In short, the expert fish agency found that the Project would cause a higher magnitude of effects to a listed species than originally disclosed, and the Forest Service still has failed provide a rational basis for the determination that NMFS’s findings and conclusions fall within the “scope and range” of the NEPA analysis. FS4thSUPP_6062. Moreover, the 2016 NIR largely dismisses a significant new circumstance that is now 11 The take exceedance occurred during implementation of a major Still Creek stream channel reconfiguration related to reconstruction of the Glade Trial—a project not disclosed or analyzed in the EA. See FS4thSUPP_5762–68 (Rhodes Rpt.); FS4thSUPP_6 (describing “2015 Still Creek/Glade Trail” as a “new area”). The location and magnitude of this new project belie the claim of “de minimus” impacts. See FS4thSUPP_5776 (showing heavy machinery operating directly within stream channel and Riparian Reserve allocation). Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 26 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 18 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 present: the restoration activities now have been virtually completed. See FS4thSUPP_6059 (“To date, with the exception of geo-grid installation at the bottom of the Jeff Flood Express chairlift, all of the watershed restoration activities included in [the EA] were completed during the summers of 2013, 2014, and 2015.”). The 2016 NIR briefly mentions in a footnote that the Reinitiation BiOp included the restoration activities in the environmental baseline, FS4thSUPP_6060 n.1, which led NMFS to decouple the restoration activities from the impacts of construction/operation. The different analytical approach taken by NMFS sheds further light on the discrepancies between the ultimate findings and conclusions of the expert fish agency and the findings of the Forest Service in the NEPA analysis. The Forest Service in the NEPA analysis considered the impacts of the Project in the aggregate, finding that the restoration activities would “offset” any sediment impacts from construction/operation. See, e.g., FS_24058. On these grounds, the Forest Service concluded that the impacts of the Project on LCR steelhead and its Critical Habitat would be insignificant and discountable. See, e.g., FS_24051. In contrast, the Reinitiation BiOp considered the impacts from the “revised proposed action”—i.e., construction and operation, independent from restoration activities. NMFS2AR_1642. In these new circumstances, NMFS concluded that the Project would have measurable adverse impacts, causing take of the species. This is precisely the type of new development that requires supplemental NEPA review. See 40 C.F.R. § 1502.9(c)(1)(ii) (supplemental NEPA required in light of substantial project changes or significant new circumstances or information). B. The significant new circumstances and information surrounding the Western bumblebee require NEPA supplementation. Supplemental NEPA analysis is also required on account of the new developments relating to the bumblebee, a designated Region 6 Sensitive Species. The Forest Service’s NEPA Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 27 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 19 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 analysis, where the agency analyzed Project impacts and disclosed information to the public, made no reference to the bumblebee. And despite the significant new circumstances and information on the record, the Forest Service has twice determined that supplemental NEPA is not required. See FS2dSUPP_889 (2013 NIR); FS4thSUPP_6063 (2016 NIR). The Forest Service’s determinations in the 2013 and 2016 NIRs are arbitrary and contrary to law because the Forest Service failed to consider important aspects of the problem and made policy determinations that go well beyond the allowable scope of non-NEPA review. 1. There is an extensive collection of new circumstances and information. Where an agency has decided that no supplementation is required, the court must carefully review the record and satisfy itself that the agency’s decision was based on a reasoned evaluation of the significance of the new circumstances and information. Marsh, 490 U.S. at 378. This case presents a unique factual scenario. This is not a case where the Forest Service evaluated the Project’s impacts on the species in the NEPA analysis, but the species’ status later changed, or new information came to light on the scope and degree of effects. Instead, this is a case whereby impacts to a Sensitive Species were not disclosed and analyzed at all during the NEPA process. This unique background is paired with widespread new evidence. First, new circumstances and information arose regarding the status of the species. In 2011, the Regional Forester designated the bumblebee as a Region 6 Sensitive Species, thereby changing the species’ status.12 New studies were published documenting species’ dramatic decline, corroborating the Sensitive Species designation. See FS2dSUPP_275. The FWS determined in 2016 that substantial scientific or commercial information indicates that listing the 12 For the NEPA analysis, the Forest Service chose to use the 2008 Sensitive Species list—which did not include the bumblebee. FS2ndSUPP_887. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 28 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 20 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 bumblebee under the ESA may be warranted. 81 Fed. Reg. 14058, 14071 (Mar. 16, 2016). Second, new circumstances and information surfaced regarding the impacts of the bike facility on the species. In 2013, expert invertebrate biologists discovered the species in the Project area. See FS2ndSUPP_272, 282. These biologists sent the Forest Service warnings about the need to protect high-elevation remnant populations, and the potential for the Project’s population-level impacts if nests are destroyed or overwintering queens are trampled during construction or operation of the bike facility. See FS2dSUPP_4465 (explaining that because bumblebee reproduction occurs at a colony level, disrupting even a few nests during construction or operation of the bike facility could have a significant impact on a population of this species); FS2dSUPP_4466 (“Killing just one queen can have dramatic consequences on bumble bee populations, since queens initiate colonies.”). Moreover, the Interagency Special Status and Sensitive Species Program funded additional survey efforts for the bumblebee on Mt. Hood. FS4thSUPP_2722. While the species was located at different locations from the initial Xerces survey efforts, in total, the species was found at less than 30% of survey locations, and the range was still confined to high-elevation sites. See FS4thSUPP_5017 (bumblebee documented at 16 of 53 survey locations in 2013 and 2015 surveys, and six of 23 locations in 2016); FS4thSUPP_5019–20 (showing only three of 22 bumblebee sightings below 3,500 feet, and none below 2,850 feet). These surveys confirm the need to protect high-elevation habitat for the species. See FS2dSUPP_4465 (“[H]igh elevation remnant populations will be needed to serve as source populations should this species stand a chance of repopulating its former range, and any potential threat should be avoided to protect this animal.”). The Project area is entirely above 3,500 feet in elevation, ranging from approximately 4,800 to 6,000 feet. FS_27832. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 29 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 21 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 On a very similar fact pattern, this Court held that an agency was required to prepare a supplemental NEPA analysis. See Cascadia Wildlands v. U.S. BLM, No. 6:12-cv-00095-AA, 2012 U.S. Dist. LEXIS 182930 (D. Or. Dec. 21, 2012) (Aiken, J.). That case involved post- NEPA developments that are also present here: (1) the designation of a distinct population segment of the red tree vole as a Candidate Species (i.e., a change in the species’ status); (2) new information demonstrating the importance of protecting remaining habitat patches; and (3) new information showing the potential for the Project’s irreparable impacts to the species’ habitat that was not considered in the original analysis. See id. at *32–35. Notably, the BLM in Cascadia Wildlands had first evaluated impacts to tree voles in the original NEPA analysis, whereas here, original analysis is silent as to the bumblebee. On this account, the present case is more closely aligned with Oregon Natural Desert Association v. Sabo, another case from this district where the court held that supplemental NEPA analysis was required. 854 F. Supp. 2d 889 (D. Or. 2012). There, the plaintiff claimed that the post-NEPA designation of new sensitive species on a cattle grazing allotment, and the documentation of damage from grazing on the species and their habitats was significant new information. Id. at 922. The court agreed with the plaintiff, holding that defendants acted arbitrarily and capriciously in violation of NEPA when they failed to undertake supplemental NEPA analysis in light of the sensitive species found on the grazing allotment. Id. at 923–24. On the unique factual record here, the Forest Service had a duty to prepare supplemental NEPA to disclose and evaluate impacts to the bumblebee in accordance with NEPA’s action- forcing procedures. 2. The agency’s substantive determinations go well beyond the allowable scope of a post-NEPA review, and are arbitrary in any event. To determine whether supplemental NEPA is required, an agency must evaluate the new Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 30 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 22 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 circumstances and information to determine whether they reveal that the Project may result in significant environmental impacts in a manner not previously evaluated and considered. Cascadia Wildlands, No. 6:12-cv-00095-AA, at *27; see also Friends of the Clearwater v. Dombeck, 222 F.3d 552, 557 (9th Cir. 2000) (explaining that when new information of this nature comes to light, the agency must consider it, evaluate it, and make a reasoned determination whether it is of such significance as to require a supplemental analysis). In the 2013 and 2016 NIRs, however, the Forest Service took a different approach. Rather than simply assess the significance of the extensive collection of new circumstances and information described above, the Forest Service made policy decisions, substantive NFMA determinations, and Project amendments. The agency’s approach was contrary to law, and the determinations made by the agency were arbitrary in any event. Instead of strictly using the NIR processes to determine whether the new information was significant, the Forest Service essentially used the processes as a surrogate NEPA analysis—but without regard for the suite of NEPA’s procedural protections, including public involvement, expert comments, scientific integrity and consideration of alternatives that avoid significant impacts.13 The efforts to address impacts to bumblebees fall well outside the permissible scope of post-NEPA review. See Idaho Sporting Cong. v. Alexander, 222 F.3d 562, 566 (9th Cir. 2000) (explaining that re-evaluation documents, such as NIRs, are used to make the initial significance determination—not to supplant any document that would be required if the threshold were met). The purpose of disclosing and analyzing information in accordance with NEPA’s action-forcing procedures—instead of non-NEPA NIRs—is abundantly clear on the 13 Plaintiffs are of course aware of the Forest Service’s limited, two-week public comment period on the agency’s draft 2016 NIR. But that brief comment period in no way serves as a substitute for a NEPA process. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 31 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 23 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 facts of this case. See Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1151 (9th Cir. 1998) (“Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.”) (citing 40 C.F.R. § 1500.1(b)). Indeed, in the 2013 NIR, the Forest Service changed its decision to include new Project Design Criteria in an attempt to address impacts to the species, FS2ndSUPP_887–888. In so doing, the Forest Service made policy determinations as to the Project Design Criteria, weighing the need for habitat protection against other considerations. See, e.g., FS2ndSUPP_895 (deciding that “timing constraints and distances recommended for moving trails in the event of a nest being discovered” were outweighed by other resource interests). But the Forest Service never took public input, or squared these determinations with Mt Hood LRMP provisions for protection of Sensitive Species and their habitat. See, e.g., FS_363 (FW-175 – “Habitat for threatened, endangered and sensitive plants and animals shall be protected and/or improved.”); FS_364 (FW-185 – providing that other resource values may be limited or precluded in localized areas to facilitate recovery efforts for Sensitive Species). Moreover, the agency made substantive NFMA determinations about the degree of impacts to the species from Project implementation. See FS2ndSUPP_887 (determining that the Project “may impact individuals or habitat but will not likely contribute towards federal listing or loss of viability of the population or species”). But the agency made the NFMA determination without first preparing a full Biological Evaluation, in accordance with the requirements of the Forest Plan, and documenting the findings in a NEPA analysis. See FS_363 (providing that Biological Evaluations shall be prepared for all Forest Service planned, funded, executed, or permitted programs or activities for possible effects on Sensitive Species). In the 2016 NIR, the Forest Service made sweeping generalizations about the status of Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 32 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 24 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 the species—based on survey efforts—while again minimizing the magnitude of the Project’s impacts. See FS4thSUPP_6063 (finding that new surveys further support “the rationale that the [Project] would not likely cause a trend toward Federal listing of the bee”). But the agency failed to square this determination with the FWS’s finding that the bumblebee now is in fact trending toward federal listing. 81 Fed. Reg. 14058, 14071 (March 16, 2016) (positive 90-day finding). In addition to unlawful, non-NEPA process for addressing known impacts to a Sensitive Species, the agency’s finding and conclusions were arbitrary in any event—further underscoring the need for application of NEPA’s procedural protections. For one, while Xerces’s survey and review documented that the central concerns to high-elevation, remnant populations of bumblebees are impacts to nesting habitat and overwintering queens, the Forest Service’s post- NEPA reviews focus almost exclusively on impacts to foraging habitat, while ignoring other significant aspects of the problem. Compare FS2ndSUPP_4465 (noting that destruction of just a few nests could have significant adverse impacts to the species) with FS2ndSUPP_887 (noting that the low level of habitat disturbance is unlikely to impact foraging habitat for the western bumblebee to such a degree as to negatively affect populations”). Moreover, the Project Design Criteria with respect to nesting habitat and overwintering queens are artificially narrow, covering only a subset of the Project’s expected impacts. For example, while the agency stated that there “are no indications that the operation of the bike trails would pose a threat to bumble bees,” FS2ndSUPP_893, Xerces had specifically warned that “[a]voiding high quality nesting areas during construction and park operation will be crucial to the survival of this animal on Mt. Hood.” FS2ndSUPP_4465. In addition, the Project Design Criteria fall well short of the recommendations of the expert biologists who discovered the Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 33 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 25 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 species in the Project area. E.g., compare FS2ndSUPP_4466 (“If bumblebee nest are found, the location of the trails and paths for construction vehicles should be altered to avoid the nesting area, with a significant buffer of at least 25 meters [75 feet] on all sides.”) with FS2ndSUPP_888 (“If any bumblebee nests are found, re-route trails 15–20 feet.”). The Forest Service’s non-NEPA NIRs were the wrong vehicles for making substantive determinations about the Project’s impacts on a newly discovered sensitive species. NIRs are not NEPA documents, and therefore cannot be used to fulfill the requirements for a revised or supplemental EA or an EIS. See ECF_139-1 at 4 (FSH 1909.15 § 18). In consideration of all the new circumstances and information related to the bumblebee, and the Forest Service’s attempts to address the information in a non-NEPA setting, it was arbitrary, capricious, and contrary to 40 C.F.R. § 1502.9(c)(1)(ii) for the agency not to supplement its analysis. II. NMFS Failed to Ensure that the Project is Consistent with the Aquatic Conservation Strategy. Plaintiffs twelfth claim for relief alleges that NMFS failed to take a required step in its Section 7 consultation: ensure project-level consistency with the ACS. Resolution of this claim is controlled by the Ninth Circuit’s decision in Pacific Coast Federation of Fishermen’s Associations (“PCFFA”) v. NMFS, 265 F.3d 1028, 1035 (9th Cir. 2001) (“PCFFA II – Appeal”), which held: “because NMFS is allowed to equate ACS consistency with a no jeopardy finding, NMFS chooses to inquire into ACS consistency.” Here, NMFS equated ACS consistency with a no jeopardy finding at the programmatic level for all projects and operations on the Mt. Hood National Forest. Accordingly, NMFS has a duty to ensure ACS consistency at the site-specific level in order to validate the programmatic no jeopardy finding. With its Section 7 consultation over the bike facility—including the NLAA concurrence, the 2014 BiOp, and the Reinitiation BiOp—NMFS has simply abandoned that duty. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 34 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 26 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 On a strikingly similar fact pattern, a court in this district determined that the FWS, acting in the same capacity as NMFS in the present case, acted arbitrarily by failing to analyze specific timber sales to determine ACS consistency. Cascadia Wildlands Proj. v. U.S. FWS, 219 F. Supp. 2d 1142, 1150 (D. Or. 2002) (Redden, J.). In short, NMFS equated a programmatic no jeopardy finding with future, site-specific ACS consistency. NMFS thus created the duty for itself to ensure site-specific consistency, and it is arbitrary, capricious, and contrary to law for NMFS now to abandon that duty. 1. The duty to ensure ACS consistency emanates from the Programmatic BiOp. The duty to ensure ACS consistency derives from NMFS’s 1998 programmatic BiOp on the effects to LCR steelhead from implementation of the Mt. Hood LRMP, as amended by the Northwest Forest Plan and ACS (“1998 BiOp” or “Programmatic BiOp”). See NMFS_8777– 8816. The 1998 BiOp concluded that implementation of the Mt. Hood LRMP (and eight other federal management plans covering lands within LCR steelhead habitat) were not likely to jeopardize the continued existence of LCR steelhead. NMFS_8778. In reaching this conclusion, NMFS relied heavily on the fact that the ACS was designed to maintain and improve habitat, and that all site-specific projects must be implemented in accordance with the ACS.14 In particular, the 1998 BiOp found that “[m]anagement of the administrative units under the NFP ACS for the benefit of listed salmonids * * * is expected to allow for the survival and recovery of affected Pacific salmonid species.” NMFS_8793. To attain this result, NMFS 14 In 1997, the NMFS released a separate programmatic BiOp analyzing implementation of various Bureau of Land Management and Forest Service LRMPs covering coastal Oregon watersheds (“1997 BiOp”). NMFS_8682. The 1997 BiOp was the subject of the PCFFA cases, and it is similar or identical in most respects to the 1998 BiOp. In 2000, the FWS issued a programmatic BiOp analyzing impacts on listed Bull trout from the implementation of LRMPs incorporating the ACS. As with the 1997 and 1998 BiOps, “the 2000 [BiOp] also explicitly required project-level consistency with ACS objectives.” PCFFA v. NMFS, 482 F. Supp. 2d 1248, 1259 (W.D. Wash. 2006) (“PCFFA III”). Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 35 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 27 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 included requirements “to ensure that proposed actions are fully consistent with applicable standards and guidelines and ACS objectives.” NMFS_8814. On this basis, in evaluating the effects to LCR steelhead from implementation of the Mt. Hood LRMP (and the other LRMPs), the 1998 BiOp noted: “The effects of individual proposed actions on listed, proposed, and candidate salmonid species addressed in this Opinion are generally predictable, however, because, by definition, they must be consistent with the ACS objectives. Compliance with these ACS objectives is not left to chance or to the discretion of individual land man[a]gers.” NMFS_8797. 2. A series of cases confirm the duty to ensure project-level ACS consistency. The legal adequacy of consulting agencies’ compliance with their Section 7 duties in the ACS context were litigated in a series of cases before the Western District of Washington, Ninth Circuit, and District of Oregon. All of those cases arrived at the same conclusion: the consulting agencies must assess ACS compliance at the project level. See PCFFA v. NMFS, No. C97-775R, 1998 U.S. Dist. LEXIS 23784 (W.D. Wash. May 29, 1998) (“PCFFA I”); PCFFA v. NMFS, 71 F. Supp. 2d 1063 (W.D. Wash. 1999) (“PCFFA II”); PCFFA II – Appeal, 265 F.3d 1028; Cascadia Wildlands, 219 F. Supp. 2d 1142; PCFFA III, 482 F. Supp. 2d 1248.15 The Ninth Circuit’s opinion in PCFFA II – Appeal is controlling. There, the Circuit Court addressed NMFS’s complaint that the district court in the case inappropriately required NMFS “to serve as a review board or oversight committee for BLM and USFS determinations of ACS consistency.” 265 F.3d at 1034. The Circuit Court clarified that NMFS’s duty is to determine whether or not a project is likely to adversely affect a listed species, and that NMFS is not required by the NWFP to determine ACS consistency. However, the Circuit Court 15 Collectively, the PCFFA cases have been referred to as the “PCFFA trilogy.” Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 36 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 28 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 explained: “[I]n PCFFA I, the district court held that NMFS was permitted to assume that implementation of projects under USFS’s [LRMP] or BLM’s [RMP] would result in ‘no jeopardy’ to the listed fish species if those projects were conducted in accordance with the ACS. Therefore, because NMFS is allowed to equate ACS consistency with a no jeopardy finding NMFS chooses to inquire into ACS consistency.” Id. at 1035. Indeed, in PCFFA I, the district court invalidated three site-specific BiOps, concluding that while “NMFS rationally assumed in the Programmatic [BiOp] that USFS and BLM would comply with the ACS on a project level basis,” at the project level, “NMFS has concluded that that the projects under consultation will not jeopardize the existence of the [species] without analyzing whether the site-specific projects are in fact complying with the ACS, the mechanism designed to protect the species.” 1998 U.S. Dist. LEXIS 23784, at *37. That same logic was carried forward in PCFFA II: “The court finds that NMFS is required by the * * * Programmatic Biological Opinion to ensure ACS compliance at all four spatial scales. Its decision to measure ACS compliance only at the watershed level and its failure to evaluate ACS compliance at the project or site level, therefore, was arbitrary and capricious.” 71 F. Supp. 2d at 1073. In Cascadia Wildlands, Judge Redden similarly concluded that there was a “substantial issue whether the FWS, in carrying out its responsibilities of consultation with regard to specific projects which might jeopardize bull trout, may ignore the specific terms and conditions it has previously deemed necessary to impose on the Forest Service to protect endangered species.” 219 F. Supp. at 1150. After being rebuked by the courts, the agencies went back to the drawing board. In 2004, the action agencies issued a new Record of Decision that amended the ACS. The ROD clarified, inter alia, that that ACS objectives were never intended to be achieved at the project level or in Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 37 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 29 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 the short term; rather, they were designed to be applied at the watershed level. See PCFFA III, 482 F. Supp. 2d at 1270–71. NMFS prepared another programmatic BiOp that addressed the effects implementing the amended ACS, as applied to various LRMPs, including Mt. Hood’s. See NMFS_8880, 8911–12. According to NMFS, this 2004 BiOp superseded both the 1997 and 1998 BiOps. In the 2004 BiOp, NMFS chose not to use ACS consistency as a proxy for avoiding jeopardy. See PCFFA III, 482 F. Supp. 2d at 1270. In PCFFA III, the Western District of Washington set aside the 2004 BiOp and the ACS amendments. The court found that the agencies’ new approach improperly deferred analysis to the site-specific level and impermissibly curtailed analysis of cumulative effects. Id. at 1265–70. Accordingly, the 1998 BiOp—and the requirement to ensure site-specific ACS consistency—is once again controlling. Cf. Olympic Forest Coal. v. U.S. Forest Serv., 556 F. Supp. 2d 1198, 1204–05 (“[A]fter PCFFA set aside the 2004 ROD, the Forest Service was obligated to go back and analyze the project under the 1994 ROD.”). 3. NMFS failed to ensure ACS consistency, erroneously believing instead that it was free to perform an “independent” site-specific jeopardy analysis. Despite the invalidation of the 2004 BiOp, which made the requirements of the 1998 BiOp binding, the Reinitiation BiOp does not include an analysis of whether the bike facility is consistent with the ACS. According to the Reinitiation BiOp, NMFS arrived at its conclusions and related findings based on an “independent analysis” that does not rely on ACS consistency. NMFS2AR_1642. The Reinitiation BiOp relies on a legal memorandum prepared by NMFS general counsel just one day before issuance of the Reinitiation BiOp. See NMFS2AR_1463–70. The memo attempts to justify the approach of using an “independent analysis,” but its findings and conclusions are plainly erroneous. In the circumstances of this case, NMFS’s position that it need not assess ACS consistency is arbitrary, capricious, and contrary to law because it (1) Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 38 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 30 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 erodes NMFS’s programmatic “no jeopardy” finding, (2) violates the mandatory terms and conditions of the 1998 BiOp, and (3) is foreclosed the PCFFA trilogy and Cascadia Wildlands. In addition, the facts of this case highlight why an “independent analysis” is contrary to the letter and spirit of the ACS and Programmatic BiOp, which set forth an integrated approach to maintaining and restoring watershed health. First, NMFS fails to reconcile the programmatic “no jeopardy” conclusion with the “independent analysis” approach. The 1998 BiOp expressly recognized the potential that implementation of dozens, if not hundreds of site-specific projects across the range of LCR steelhead would have a high risk of jeopardizing the species if management agencies continued under the status quo. See NMFS_8792–93 (“Generally adverse effects to listed salmonids and their habitat result from the aggregation of impacts which occur at the site-specific level. The accumulation of effects at the landscape level from numerous actions, if not fully arrested at the project scale, would reduce the likelihood of both survival and recovery of the species.”). But on the basis of ACS consistency, NMFS was able to conclude that the effects of collective implementation of these projects would not jeopardize the continued existence of LCR steelhead. See NMFS_8797 (noting that the effects of individual proposed actions are generally predictable “because, by definition, they must be consistent with ACS objectives”). The error of an “independent analysis” in this context is thus abundantly clear: there is no mechanism for validating the assumption at the programmatic level that site-specific projects would be implemented consistent with the ACS, and thus no mechanism to ensure that the aggregate effects of multiple projects are properly accounted for. In this respect, NMFS is losing sight of the forest for the trees. The Ninth Circuit specifically addressed this point: “Unless the effects of individual projects are aggregated to ensure that their cumulative effects are perceived Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 39 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 31 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 and measured in future ESA consultations, it is difficult to have any confidence in a wide regional no-jeopardy opinion.” PCFFA II – Appeal, 265 F.3d at 1036. NMFS’s “independent analysis” cannot be reconciled with the approach endorsed by the 1998 BiOp. Second, NMFS argues that any duty to ensure ACS consistency is not binding on NMFS, and instead rests solely with the action agencies. In so arguing, NMFS is attempting to re-write the plain terms and conditions of the 1998 BiOp. The 1998 BiOp endorsed a streamlined consultation process, wherein interagency teams—including representatives from NMFS— would evaluate proposed projects using a matrix of pathways and indicators, “a holistic method for characterizing environmental baseline conditions and predicting the effects of human activities on those baseline conditions.” NMFS_8801. One of the “conclusions and assumptions” of the 1998 BiOp that formed the basis for the programmatic “no jeopardy” conclusion was that site-specific consultation “will follow” the interagency streamlined consultation process “to ensure that future individual and grouped USFS and BLM actions are consistent with ACS objectives * * *.” NMFS_8805. On these grounds, NMFS was “able to prescribe reasonable and prudent measures that will reduce the overall expected level of incidental take associated with continued implementation of management plan direction by ensuring that planned actions are fully consistent with the ACS objectives.” NMFS_8813. The notion that the NMFS is simply free to excuse itself from taking a role in the ACS consistency evaluation is unfounded. The point of ensuring ACS compliance was that NMFS recognized that under the Northwest Forest Plan, action agency decisionmakers still retained enough discretion to implement projects that were not fully consistent with the ACS. See NMFS_8776. And thus the point of the streamlined consultation process was to provide a necessary check and balance: “[T]he review of proposed actions by Level 1 teams pursuant to Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 40 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 32 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 the interagency ESA consultation streamlining agreements provides an added measure of assurance that projects will be properly designed to fully meet ACS objectives.” NMFS_8799. NMFS’s “independent analysis” approach cannot be squared with the plain requirements of the 1998 BiOp. Third, NMFS’ position conflicts with the PCFFA trilogy, and ignores the on-point case from this district, Cascadia Wildlands. NMFS actually cites PCFFA II – Appeal in support of its position, but NMFS reads the PCFFA trilogy out of context. The Ninth Circuit did remark that methods of reaching a no jeopardy conclusion, other than ACS consistency, are available to the agency. PCFFA II – Appeal, 265 F.3d at 1035. But here, NMFS at the programmatic level specifically chose to equate ACS consistency with a no jeopardy finding. NMFS cannot now deviate from the choice it made at the programmatic level and avoid validating that conclusion at the site-specific level. See PCFFA I, 1998 U.S. Dist. LEXIS 23784, at *36 (“On the programmatic level, NMFS has assumed ACS compliance, but on the project level it has failed to ensure or verify compliance.”). NMFS also suggests that Judge Redden in Cascadia Wildlands “tentatively misapplied or misapprehended” the Ninth Circuit’s reasoning in PCFFA II – Appeal. See NMFS2AR_1468. Respectfully, it is not the place of NMFS’s counsel to decide whether a published opinion from this district was wrongly decided. Moreover, that Cascadia Wildlands was issued on a Preliminary Injunction is of no consequence, as demonstrated by the thoroughness of Judge Redden’s opinion. Finally, the facts of this case prove the importance of adhering to the integrated approach for ensuring ACS consistency set forth by the Programmatic BiOp. As outlined by the 1998 BiOp, the streamlined consultation process was intended as a mechanism for ensuring ACS Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 41 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 33 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 consistency in the first place. See NMFS_8802–03. To avoid adverse impacts to LCR steelhead, NMFS believed that “projects must be meticulously designed, timed, and implemented to minimize effects on listed species and the habitat that supports them.” NMFS_8803. Moreover, the process for validating ACS consistency was central to the programmatic “no jeopardy” conclusion; NMFS expressly relied on the fact that a “consistent, agreed upon” process to “ensure” ACS consistency would be used for future site-specific projects. NMFS_8805. The “independent analysis” is not compatible with the integrated approach for ensuring ACS consistency and validating the programmatic “no jeopardy” conclusion. The factual record and trajectory of this case demonstrates the problems that arise without the checks and balances prescribed by the 1998 BiOp. Critically, the Forest Service and NMFS have arrived at different conclusions about the scope and magnitude of aquatic impacts. Where the Forest Service found ACS consistency, it did so on the basis of the Project’s mitigation measures, and never squared this approach with standard WR-3 of the ACS. See SUPP_1313. Now, the Forest Service’s determinations have been directly called into question by NMFS’s findings and conclusions in the Reinitiation BiOp.16 And the ultimate determinations of the two agencies have never been formally reconciled as to ACS consistency, and with the programmatic BiOp. For example, while NMFS in the 1998 BiOp noted that projects producing only “short-term adverse effects, such as localized sediment pulses” may not necessarily retard ACS objectives, NMFS_8803, the Reinitiation BiOp concludes that construction and operation of the bike facility would generate suspended sediments annually for the life of the project. NMFS2AR_1676. In summary, where NMFS has adopted site-specific ACS consistency as the basis for its 16 Although this Court affirmed the Forest Service’s finding of ACS consistency in the March 25, 2016 Opinion and Order, Plaintiffs note they are respectfully requesting that the Court reconsider this holding in the concurrently filed Motion for Partial Reconsideration. Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 42 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - 34 Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 programmatic no jeopardy finding, as here, it is arbitrary, capricious, and contrary to law for NMFS to now abandon that duty. Here, consultation over ACS consistency is critical, so that an interagency team can ensure that the Project complies with the protections for LCR steelhead and Critical Habitat, individually and in the aggregate. CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully ask the Court to grant their Second Motion for Summary Judgment, hold unlawful and set aside the Forest Service and NMFS’s environmental analyses and decisions, and remand to the agencies to comply with the law. Respectfully submitted this 27th day of February 2017. /s/ Oliver J. H. Stiefel Oliver J. H. Stiefel, OSB No. 135436 oliver@crag.org – (503) 227-2212 Ralph O. Bloemers, OSB No. 984172 ralph@crag.org - (503) 525-2727 Christopher G. Winter, OSB No. 984355 chris@crag.org - (503) 525-2725 Crag Law Center 917 SW Oak Street, Suite 417 Portland, OR 97205 Fax: (503) 296-5454 Attorneys for Plaintiffs Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 43 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - I Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 TABLE OF CITATIONS Forest Service Administrative Record (“FS”) FS_ DATE Author / TITLE 244–871 1990 U.S. Forest Service, Land and Resource Management Plan – Mt. Hood National Forest 2954–4594 2/1/1994 U.S. Forest Service, Final Environmental Impact Statement on Management of Habitat for Late-Successional and Old- Growth Forest Related Species Within the Range of the Northern Spotted Owl 23464–23485 6/13/2011 William Stelle, Endangered Species Act Section 7 Consultation – Letter of Concurrence from NMFS 24001–24081 6/22/2011 Katheryn Arendt, Fisheries Biological Assessment – Timberline Downhill Bike Park 27628–27720 7/11/2012 Katheryn Arendt, Fisheries Biological Evaluation – Timberline Downhill Bike Park 27731–28084 11/2012 U.S. Forest Service, Timberline Ski Area Mountain Bike Trails and Skills Park: Environmental Assessment 28085–28108 11/19/2012 Christopher Worth, Timberline Ski Area Mountain Bike Trails and Skills Park – Decision Notice and Finding of No Significant Impact 29291–29322 2/2013 U.S. Forest Service, Timberline Ski Area Mountain Bike Trails and Skills Park Environmental Assessment – Appeal Statements and Responses Forest Service Supplemental Record (“SUPP”) SUPP_ DATE Author / TITLE 1–1259 1990 U.S. Forest Service, Final Environmental Impact Statement – Mt. Hood Land and Resource Management Plan 1287–1439 1994 U.S. Forest Service / U.S. Bureau of Land Management, Standards and Guidelines for Management of Habitat for Late-Successional and Old-Growth Forest Related Species Within the Range of the Northern Spotted Owl 1440–1461 9/23/2005 U.S. Forest Service, Forest Service Manual – Chapter 2670 – Threatened, Endangered, and Sensitive Plants and Animals Forest Service Second Supplemental Record (“FS2ndSUPP”) FS2ndSUPP_ DATE Author / TITLE 8–70 1/1/2008 Evans, et al., Research Paper titled, “Status Review of Three Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 44 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - II Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 Formerly Common Species of Bumble Bee in the Subgenus Bombus, Bombus affinis (the rusty patched bumble bee), B. terricola (the yellowbanded bumble bee), and B. occidentalis (the western bumblebee.).” 272–290 9/1/2013 Rich Hatfield, et al., Surveys on the Mount Hood National Forest for the western bumblebee (Bombus occidentalis (Greene 1858)) 317–327 11/14/2013 Crag Law Center on behalf of Bark, Friends of Mount Hood, Northwest Environmental Defense Center, and the Sierra Club, 60-day Notice of Intent to Sue for Violations of Section 7 of the Endangered Species Act Relating to the Timberline Ski Area Mountain Bike Trails and Skills Park Decision Notice and Finding of No Significant Impact 886–922 12/19/2013 U.S. Forest Service, Timberline Ski Area Mountain Bike Trails and Skills Park – New Information Review 2925–3859 3/14/2013 Various, Responsive Documents to FOIA Request #14-01 (Resend Release 2) (Enclosures for AR 2924) 4242–4253 9/18/2014 U.S. Forest Service, New information review of the NMFS Biological Opinion and partial completion of restoration activities 4465–4468 11/2013 Rich Hatfield, Feedback on the Timberline Mountain Bike Trails and Skills Park proposal as it relates to populations of the western bumble bee (Bombus occidentalis (Greene 1858)) Forest Service Fourth Supplemental Record (“F4thSUPP”) FS4thSUPP_ DATE Author / TITLE 2722–2750 12/1/2015 Aln Dyck, USFS, Summary Report for Western Bumble Bee Surveys. It is a summary report for 2015 surveys funded by the Interagency Special Status/Sensitive Species Program (ISSSSP) 5017–5020 10/5/2016 Chuti Fielder, USFS, Report entitled Interim Summary Report Findings for the Western Bumblebee (Bombus Occidentalis) 5023–5029 10/13/2016 U.S. Forest Service, Letter regarding initial draft of Northrop’s analysis and tentative findings with respect to certain items of new information related to the Timberline Ski Area Mountain Bike Trails and Skill Park project and whether such information gives rise to a need for the Mt. Hood National Forest to supplement the Environmental Assessment it prepared for the project 5340–5348 10/31/2016 Friends of Mount Hood, Letter to Lisa Northrop re: Timberline Mountain Bike New Information 6058–6063 12/14/2106 U.S. Forest Service, Timberline Ski Area Mountain Bike Trails and Skills Park – New Information Review Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 45 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - III Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 NMFS Administrative Record (“NMFS”) NMFS_ DATE Author / TITLE 133–143 11/14/2013 Crag Law Center on behalf of Bark, Friends of Mount Hood, Northwest Environmental Defense Center, and the Sierra Club, 60-day Notice of Intent to Sue for Violations of Section 7 of the Endangered Species Act Relating to the Timberline Ski Area Mountain Bike Trails and Skills Park Decision Notice and Finding of No Significant Impact 727–799 8/4/2014 National Marine Fisheries Service, Endangered Species Act Biological Opinion for the Timberline Downhill Bike Park, Still Creek, Sand Canyon, Glade and West Fork Salmon River Sub-Watersheds (HUCs 170800010201, 170800010202, 170800010101), Mount Hood National Forest, Clackamas County, Oregon (signed) 5519–6021 6/2013 National Marine Fisheries Service, ESA Recovery Plan for Lower Columbia River Coho Salmon, Lower Columbia River Chinook Salmon, Columbia River Chum Salmon, and Lower Columbia River Steelhead 8682–8761 3/18/1997 National Marine Fisheries Service, Endangered Species Act Section 7 Conference Opinion on Continued Implementation of U.S. Forest Service Land and Resource Management Plans and Bureau of Land Management Resource Management Plans, consultation number [711] 8777–8816 3/19/2013 National Marine Fisheries Service, Endangered Species Act Section 7 Conference Opinion on Continued Implementation of U.S. Forest Service Land and Resource Management Plans and Bureau of Land Management Resource Management Plan Affecting the Lower Columbia River Steelhead Evolutionarily Significant Unit 8880–9000 3/19/2004 National Marine Fisheries Service, Endangered Species Act Formal Section 7 Consultation on Resource Management Plans for Nine Bureau of Land Management Districts and Land and Resource Management Plans for Seventeen National Forests Within the Northwest Forest Plan Area, as Amended by the October 2003, FSEIS Clarifying Provisions Relating to the Aquatic Conservation Strategy NMFS Second Administrative Record (“NMFS2AR”) NMFS2AR_ DATE Author / TITLE 22–24 9/14/2015 Bradley Goehring, USFS, Email to NMFS re: Timberline Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 46 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - IV Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 Mountain Bike Park Implementation Update 168–169 12/16/2015 Ken Phippen, NMFS, Letter Regarding Timberline Bike Park Reinitiation of Consultation 171 12/18/2015 Lisa Northrop, USFS, Letter from Mt. Hood National Forest Regarding Timberline Bike Park Reinitiation of Consultation 182–453 1/7/2016 Friends of Mount Hood, Letter to NMFS re: Reinitiation of Consultation, with attachments 8/3/2016 Kim Kratz and Sheila Lynch, NMFS, Memo re: Whether NMFS is required to determine if the Timberline Bike Park proposed action is consistent with the Aquatic Conservation Strategy, incorporated into the Land and Resource Management Plan for Mt. Hood National Forest, in completed an ESA Section 7 consultation on the proposal 1633–1709 8/4/2016 National Marine Fisheries Service, Biological Opinion resulting from Reinitiation of the Endangered Species Act Consultation for the Timberline Downhill Bike Park, Still Creek, Sand Canyon, Glade and West Fork Salmon River Sub- Watersheds (HUCs 170800010201, 170800010202, 170800010101), Mount Hood National Forest, Clackamas County, Oregon Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 47 of 48 Plaintiffs’ 2d Mot. & Memo. ISO SJ - V Bark, et al. v. Northrop et al., Case No. 3:13-cv-828-AA Crag Law Center 917 SW Oak St., Suite 417 Portland, OR 97205 Tel. (503) 525-2727 CERTIFICATE OF SERVICE I, Oliver Stiefel, hereby certify that I electronically transmitted the foregoing via ECF to all parties named below: STEPHEN J. ODELL, OSB #903530 steve.odell@usdoj.gov SEAN E. MARTIN, OSB # 054338 sean.martin@usdoj.gov Assistant United States Attorneys 1000 SW Third Avenue, Suite 600 Portland, OR 97204 Telephone: (503) 727-1010 Facsimile: (503) 727-1117 Of Attorneys for Federal Defendants SARAH J. CROOKS, OSB NO. 971512 scrooks@perkinscoie.com PERKINS COIE LLP 1120 N.W. Couch Street, Tenth Floor Portland, OR 97209-4128 Telephone: (503) 727-2000 Facsimile: (503) 727-2222 ROBERT A. MAYNARD, ISB NO. 5537, PRO HAC VICE rmaynard@perkinscoie.com ERIKA E. MALMEN, ISB NO. 6185, PRO HAC VICE emalmen@perkinscoie.com PERKINS COIE LLP 1111 West Jefferson Street, Suite 500 Boise, ID 83702 Telephone: (208) 343-3434 Facsimile: (208) 343-3232 Attorneys for Defendant-Intervenor RLK and Company /s/ Oliver Stiefel Oliver J. H. Stiefel, OSB No. 135436 Case 3:13-cv-00828-AA Document 215 Filed 02/27/17 Page 48 of 48 1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF OREGON 3 BARK, an Oregon non-profit ) corporation, et al., ) 4 ) Plaintiffs, ) Case No. 3:13-cv-00828-AA 5 ) v. ) 6 ) LISA NORTHROP, Acting Forest ) 7 Supervisor of the Mt. Hood ) National Forest, et al., ) November 9, 2015 8 ) Defendants. ) Portland, Oregon 9 ) RLK AND COMPANY, an Oregon ) 10 corporation, ) ) 11 Defendant-Intervenor.) _______________________________) 12 13 14 15 16 17 Oral Argument 18 TRANSCRIPT OF PROCEEDINGS 19 BEFORE THE HONORABLE ANN L. AIKEN 20 UNITED STATES DISTRICT COURT CHIEF JUDGE 21 22 23 24 25 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 1 of 134 2 1 2 APPEARANCES 3 4 FOR THE PLAINTIFFS: Mr. Christopher G. Winter Mr. Oliver J. Stiefel 5 Crag Law Center 917 S.W. Oak Street, Suite 417 6 Portland, OR 97205 7 8 9 FOR THE DEFENDANTS: Mr. Stephen J. Odell Mr. Sean E. Martin 10 United States Attorney's Office 1000 S.W. Third Avenue, Suite 600 11 Portland, OR 97204 12 13 FOR THE INTERVENOR- DEFENDANT: Mr. Robert A. Maynard 14 Perkins Coie, LLP 1111 West Jefferson Street, Suite 500 15 Boise, ID 83702 16 17 COURT REPORTER: Bonita J. Shumway, CSR, RMR, CRR United States District Courthouse 18 1000 S.W. Third Ave., Room 301 Portland, OR 97204 19 (503) 326-8188 20 21 ALSO PRESENT: Mr. Dennis Chaney, Ms. Val Black, Ms. Sheila Lynch, Mr. Doug Angel 22 23 24 25 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 2 of 134 3 1 (P R O C E E D I N G S) 2 THE CLERK: This is the time set for oral argument in 3 Civil Case No. 3:13-cv-00828-AA, Bark, et al. v. Northrop, et 4 al. 5 Beginning with plaintiff, will counsel please state 6 your name and who you represent for the record. 7 MR. STIEFEL: Good afternoon, Your Honor. This is 8 Oliver Stiefel on behalf of Plaintiffs Bark, Northwest 9 Environmental Defense Center, Friends of Mt. Hood, and Sierra 10 Club. 11 MR. WINTER: Good afternoon, Your Honor. Christopher 12 Winter on behalf of plaintiffs. 13 MR. CHENEY: Hello, Your Honor. Dennis Cheney with 14 Friends of Mt. Hood. 15 MR. ODELL: Good afternoon, Your Honor. I'm Steve 16 Odell, representing the federal defendants in this matter. 17 MR. MARTIN: Good afternoon, Your Honor. Sean 18 Martin, U.S. Attorney's Office for federal defendants as well. 19 And joining us at counsel table is Mr. Doug Angel 20 from the U.S. Attorney's Office. He's going to help us with 21 some of the visuals from the computer screens this afternoon. 22 MR. MAYNARD: And, Your Honor, Bob Maynard, 23 representing RLK and Company, the defendant-intervenor. 24 THE COURT: Well, we meet again. So I have read 25 everything. I think I have more charts and graphs. We'll see Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 3 of 134 4 1 how many, in terms of what you've presented, I have by way of 2 comments. So I'm happy to begin and hear anything any of you 3 wish to add and how do you want to proceed. 4 MR. STIEFEL: Thank you very much, Your Honor. The 5 parties have conferred and reached an agreement about the 6 allocation of time. I'll provide my opening, defendants will 7 respond, and then I'd like the opportunity for a brief 8 rebuttal. 9 THE COURT: That's how we'll do it. 10 MR. ODELL: That sounds acceptable to federal 11 defendants and is consistent with what we've worked out with 12 Mr. Stiefel ahead of time. And then we'd also like to reserve 13 some of our time for a brief rebuttal as well. 14 THE COURT: I don't know if anybody has set a time 15 limit on this. I usually hold these hearings as long as I need 16 to hear what is being said or you feel you need contribute. So 17 I'm happy to hear anything anybody wishes to say. I'm actually 18 happy to hear that you're conferring. That's good, since 19 there's been some amount of tension in this case. So I 20 appreciate what thought you've put into working some of that 21 out ahead of time. 22 So go ahead. 23 MR. ODELL: Thank you, Your Honor. 24 MR. STIEFEL: Thank you very much, Your Honor. 25 And out of respect for Your Honor's time, and given Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 4 of 134 5 1 that the issues in this case have been thoroughly briefed, I'd 2 like to streamline and consolidate my argument for the Court 3 today as much as possible. 4 So here is a brief road map of where I'd like to 5 focus today. First I'd like to talk about the three aquatics 6 issues, and these relate to the impacts to LCR steelhead -- 7 Lower Columbia River steelhead -- and sensitive riparian 8 habitat along the flanks of Mt. Hood. 9 So I'll start by discussing the supplemental NEPA 10 claim with respect to the Forest Service's duties to address 11 the biological opinion and incidental take statement issued by 12 the National Marine Fisheries Service. Next I'll turn to the 13 ESA claims, and then I'll move on to the NFMA claim regarding 14 compliance with the Aquatic Conservation Strategy of the 15 Northwest Forest Plan. 16 So that's where I plan to focus the majority of my 17 time today, but I would also like to briefly touch on the 18 supplemental NEPA claim -- or second supplemental NEPA claim 19 with regard to the western bumblebee. 20 I will only go into the two remaining issues, Your 21 Honor, on the master development plan claim and on the EIS 22 claim to the extent that Your Honor has any specific questions 23 about those issues. Otherwise, I will rest on the briefing. 24 THE COURT: All right. 25 MR. STIEFEL: So moving right into the aquatics Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 5 of 134 6 1 issues, I'll begin by talking first, as I mentioned, about the 2 supplemental NEPA claim. This claim we've briefed at pages 40 3 through 44 of our opening, and 37 through 44 of our reply. 4 This is a straightforward supplemental NEPA claim. 5 In its NEPA analysis, along with NFMS's initial imprimatur, the 6 Forest Service told the public that the project would only 7 result in insignificant and discountable effects to Lower 8 Columbia River steelhead. In other words, the project was not 9 likely to adversely affect the species, NLAA. 10 But after the Forest Service released its decision, 11 NMFS went back and took a fresh look at the project's impacts 12 and decided that the project would actually cause take of a 13 listed species. 14 In a supplemental information report, the Forest 15 Service looked at NMFS's new position and said that the effects 16 disclosed and considered in the underlying NEPA analysis 17 covered all of the effects disclosed by NMFS in the biological 18 opinion. In other words, those effects were within the scope 19 and range of the initial analysis. 20 So the briefing goes into all the reasons why we 21 believe that decision was arbitrary, but there are two key 22 points I'd like to focus the Court's attention on today. 23 First, the disclosure and analysis within the BiOp presents a 24 seriously different picture than the disclosure and analysis in 25 the Forest Service's NEPA analysis. And second, a case from Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 6 of 134 7 1 this district, Cascadia Wildlands v. U.S. Forest Service, Judge 2 Coffin's case out of 2011, is directly on point. 3 There are substantial differences between the Forest 4 Service's NEPA analysis and the BiOp on a host of issues, 5 including the degree of impacts from restoration, including the 6 presentation of the species' baseline, but, of course, the key 7 difference is the agencies' respective conclusions about the 8 magnitude of impacts. So in the Forest Service's NEPA 9 analysis, it concluded that the project may affect and was not 10 likely to adversely affect the species. In the BiOp, the 11 expert agency concluded that the project was likely to 12 adversely affect the species. 13 THE COURT: Didn't it basically say individual not 14 species? 15 MR. STIEFEL: Well, take of listed species. 16 THE COURT: Right. 17 MR. STIEFEL: But that's a key determination, Your 18 Honor, about the magnitude of effects because, one, with its 19 NLAA determination, the Forest Service concluded that there 20 would be no direct physical impacts even to individuals of the 21 species. 22 The BiOp, on the other hand, found that the suspended 23 sediments generated by the project would cause direct physical 24 damage. That's why it issued an incidental take statement. 25 So I brought up these claims about the fact that NMFS Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 7 of 134 8 1 changed its position to conclude that the effects of the action 2 would actually cause take of a listed species. This is 3 something that the Forest Service's NEPA analysis never 4 accounted for, and that's a seriously different picture of the 5 degree of environmental effects. 6 Now, there's a case from this district that's 7 directly on point here, and that's the Wildlands case that I 8 just mentioned. None of the other cases that defendants have 9 cited here involve this same situation. All of those cases 10 were either not supplemental NEPA cases or they involved a 11 continuity of effects analysis. That's like the Alliance for 12 Wild Rockies case, the Ninth Circuit case that both defendants 13 cite. In that case, the original NEPA analysis, the Section 7 14 consultation, and the preconsultation all shared a unifying 15 theme, and that was an NLAA determination. 16 But here, just as in Wildlands, the effects 17 determination actually got flipped. And so the Forest Service 18 in its NEPA analysis in Wildlands concluded NLAA -- not likely 19 to adversely affect -- but after the project was authorized, 20 the Forest Service acknowledged an LAA, likely to adversely 21 affect. In that case, I believe the issue involved was the 22 take of two NSO, northern spotted owl pairs. 23 After the project was authorized, the Forest Service, 24 like I mentioned, went back and disclosed LAA based on that 25 finding of take. On those facts, Judge Coffin cut right to the Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 8 of 134 9 1 heart of the issue. "This acknowledgement is new and 2 significant information that cannot be overcome by an in-house 3 SIR by the agency. Central decisions affecting the analysis 4 and approval of the timber sale were based on a factual 5 inaccuracy, and the public has yet to be informed of the actual 6 findings (LAA as opposed to NLAA) so it can engage in 7 meaningful input." 8 That's at pincite 991 in the case. 9 Here we have the same situation. The decision notice 10 at AR 28092 concludes NLAA -- that's the determination that the 11 DN made -- whereas the BiOp says -- and I'll quote -- "The 12 restoration and trails construction and operation and 13 maintenance will negatively effect LCR steelhead through 14 increased fine sediment inputs to an already degraded habitat." 15 And that's why it issued an incidental take statement 16 here. 17 Also in Cascadia Wildlands, the Forest Service in its 18 SIR tried to argue that likely adverse effects were actually 19 disclosed and considered in the underlying NEPA analysis. But 20 the Court expressly rejected that argument, stating, "Express 21 NLAA determination in the EA which carried over to the decision 22 notice and FONSI and was further cited as the basis for the 23 denial of the administrative appeal was made in that case." 24 And here we have just the same situation. The Forest 25 Service at all stages of its NEPA analysis -- so the EA, the Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 9 of 134 10 1 response to comments, the DN, and the appeal responses -- said 2 that the effects of the action would be insignificant and 3 discountable, no direct physical impacts to the species. 4 So in conclusion on this claim, Your Honor, because 5 the Forest Service represented to the public in its NEPA 6 analysis that the project is not likely to adversely affect the 7 species because impacts will be insignificant or discountable, 8 the consulting agency then goes back and determines that the 9 project is likely to adversely affect the species, the Forest 10 Service must supplement its NEPA analysis to disclose to the 11 public this significant new information and amend its NEPA 12 analysis accordingly. 13 I'd like to preface my discussion of the next two 14 claims, Your Honor -- and these are on the ESA issue and on the 15 NFMA issue -- by quickly providing some relevant context. That 16 is with respect to the role of restoration within the Northwest 17 Forest Plan's Aquatic Conservation Strategy. So here the 18 standard WR-3 is directly tied to a legacy of past restoration 19 failures and the significant timelines that necessarily flow 20 between a restoration activity and the accrual of any benefits. 21 For years on our Pacific Northwest forests, projects 22 had been implemented under promises that mitigation or planned 23 restoration would effectively cancel out any adverse impacts to 24 new projects. But rather than continuing with the status quo, 25 where the risk was placed on the restoration measure's ability Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 10 of 134 11 1 to offset impacts, the drafters of the Northwest Forest Plan 2 flipped the risk by requiring that habitat be protected in the 3 first instance. 4 And I'll just read a brief quote from the Northwest 5 Forest Plan FEIS at AR 3164: "Frequently, mitigation was used 6 to attempt to neutralize the negative effects on 7 riparian-dependent resources. Implementing a project placed 8 the risk on the mitigation measure, which might not have 9 achieved the desired result. The risk has been shifted under 10 the Aquatic Conservation Strategy." 11 And so the project here, by substituting the 12 speculative benefits of the restoration project for known 13 habitat degradation, is fundamentally at odds with this 14 approach. 15 Now, with that backdrop, I'll turn to the ESA claim. 16 And I'd like to specifically discuss the issue of NMFS's -- the 17 National Marine Fisheries Service's -- failure to ensure that 18 the project is consistent with the ACS. And our ESA claim here 19 is briefed at pages 31 through 40 of our opening, and pages 27 20 through 36 of our reply. 21 At the outset, I would like to acknowledge that 22 plaintiffs do appreciate the fact that NMFS went back and took 23 a closer look at the project's impacts, and we do appreciate 24 the BiOp's more robust analysis and conclusions about the 25 magnitude of effects to the species. These conclusions go well Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 11 of 134 12 1 beyond the scope of what the Forest Service initially disclosed 2 to the public, so I would like to say that at the outset. 3 But there are a number of flaws that plaintiffs have 4 identified with respect to the BiOp and the ITS. In the 5 interests of time today, however, I won't reprise all those 6 arguments and instead will just focus on the ACS consistency 7 issue. And that's really at the heart of this case. 8 Plaintiffs' claim here is that NMFS failed to take 9 the required step in its Section 7 consultation duties to 10 ensure that the project is consistent with the Aquatic 11 Conservation Strategy. This issue was controlled by the Ninth 12 Circuit decision in the PCFFA case. And that's at 265 F.3d 13 1028. 14 There the Court explained because NMFS is allowed to 15 equate ACS consistency with a no jeopardy finding, NMFS chooses 16 to inquire into ACS consistency. 17 Here, NMFS chose to inquire into ACS consistency with 18 its 1998 programmatic biological opinion. That BiOp assessed 19 the impacts of implementation of Mt. Hood's forest plan, given 20 the changes made by the Northwest Forest Plan on LCR steelhead. 21 That biological opinion is in the record at NMFS 8777 through 22 8816. 23 There, the no jeopardy conclusion was expressly based 24 on future site-specific projects being implemented consistent 25 with the Aquatic Conservation Strategy. That BiOp imposed Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 12 of 134 13 1 specific terms and conditions and reasonable and prudent 2 measures. These are nondiscretionary measures designed to 3 minimize any incidental take of the species. And so we see one 4 RPM expressly stating, "Ensure the proposed actions are fully 5 consistent with applicable standards and guidelines and ACS 6 objectives." 7 One term and condition establishes an interagency 8 process for evaluating effects on projects on LCR steelhead, 9 including a requirement to ensure ACS consistency. 10 Now despite these strict terms, defendants now are 11 arguing that NMFS was free to abandon this whole programmatic 12 BiOp and assess site-specific projects completely on an 13 independent basis. But that's not a permissible approach under 14 the Ninth Circuit's PCFFA ruling. 15 And, indeed, the one court that has actually 16 considered this issue found that consistency determination is 17 required. That case is another Cascadia Wildlands case, 18 Cascadia Wildlands v. Fish and Wildlife Service, 219 F.Supp. 2d 19 1142. And that's a Judge Redden decision out of 2002. 20 That case had exactly the same posture. In 2000, 21 Fish and Wildlife Service released a programmatic BiOp, 22 assessing the implementation of the Northwest Forest Plan on 23 bull trout -- that was the listed species at issue -- and a no 24 jeopardy determination was made at that programmatic level, 25 contingent upon future site-specific projects being implemented Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 13 of 134 14 1 consistent with the ACS. 2 And so in 2002, there was another site-specific 3 project. NMFS released a site-specific BiOp that concluded no 4 jeopardy but did not discuss or analyze consistency with the 5 ACS. 6 So defendants here are pressing the exact same 7 argument that the agency made in that case, the Cascadia case, 8 that it is not the job of the consulting agency to ensure 9 consistency with the ACS; that's only the job of the action 10 agency, so the Forest Service. 11 But to that, Judge Redden said -- and I'm going to 12 quote the opinion at length here because of its particular 13 relevance. In PCFFA the Court agreed it was not the role of 14 the defendant pursuant to its obligations under the ESA to 15 determine ACS consistency. "Where the defendant equated ACS 16 consistency with a no jeopardy finding, however, the defendant 17 chose to inquire into that consistency. Here, a specific term 18 and condition imposed on the Forest Service by the Fish and 19 Wildlife Service in its programmatic biological opinion 20 regarding the bull trout is that the Forest Service analyzed, 21 designed, and implemented timber harvest activities to meet ACS 22 objectives." 23 Judge Redden concluded that the Forest Service -- or 24 rather the Fish and Wildlife Service, in carrying out its 25 consultation obligations for site-specific projects, may not Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 14 of 134 15 1 ignore the specific -- site-specific terms and conditions it 2 had previously determined necessary to impose on the Forest 3 Service to protect endangered species. 4 That's at pincite 1150 of that opinion. 5 So here we have the exact same situation. NMFS 6 equated a programmatic no jeopardy finding with future 7 site-specific ACS consistency. NMFS has thus created the duty 8 for itself to ensure site-specific consistency, and now it is 9 arbitrary for them to simply abandon that duty. 10 Now, remedying this legal error on remand would not 11 just be an exercise in form over substance. NMFS is the expert 12 agency here, required by Section 7 to take a hard look at a 13 project's impacts on its species. In 1998, NMFS integrated the 14 consistency requirement into all future site-specific 15 consultations. At that time there was the acknowledgment that 16 cumulatively across the landscape, there was a high risk of 17 jeopardizing species like the LCR steelhead by continuing 18 simply with the status quo. So the critical determination was 19 made at that juncture that all projects must be consistent with 20 the ACS. 21 So, in sum, all things being equal, NMFS is free to 22 measure jeopardy using different standards than ACS 23 consistency, but here, where it has expressly chosen to use 24 site-specific consistency as its programmatic no jeopardy 25 surrogate, NMFS is not free to simply ignore that specific Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 15 of 134 16 1 approach, because that would be arbitrary. 2 THE COURT: And just as a heads-up to the defendant, 3 I've been persuaded from my reading that this analysis is 4 fairly strong. Just a heads-up. 5 MR. STIEFEL: So our other ESA claims, Your Honor, 6 have been fully briefed, and unless there's any specific 7 questions, I would like to keep -- continue with the theme of 8 ACS consistency. 9 THE COURT: No. I just wanted to give them a heads 10 up to respond, meaning you organized this in a way that 11 highlights what I was going to refer to. 12 MR. STIEFEL: Thank you very much, Your Honor. 13 So I'll turn now to our claims regarding the Forest 14 Service's duties under the Aquatic Conservation Strategy, and 15 this claim can be found at pages 22 through 31 of our opening 16 brief, and pages 11 through 20 of reply. 17 Now, as we've just been discussing, the site-specific 18 project must be consistent with the ACS. That is the governing 19 duty. 20 Just as really quick brief background here, the ACS 21 was developed to restore and maintain the ecological health of 22 watersheds and aquatic ecosystems. An integral component, as 23 Your Honor well knows, are riparian reserves. These are areas 24 where riparian-dependent resources receive primary emphasis. 25 In these areas, standards and guidelines both prohibit and Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 16 of 134 17 1 regulate all activities. Each site-specific project that takes 2 place within riparian reserves must be consistent with the 3 Aquatic Conservation Strategy objectives. And so that includes 4 ACS goal No. 4, which requires the agency to find that the 5 project will maintain and restore water quality necessary to 6 support healthy riparian, aquatic, and wetland ecosystems; and 7 ACS goal No. 5, requiring a finding that the project will 8 maintain and restore the sediment regime under which aquatic 9 ecosystems evolved. 10 So as we can see, the ACS sets a maintain and restore 11 standard, and to comply with the ACS, every site-specific 12 project must be consistent with that standard in its own right. 13 And that is because standard WR-3 does not permit the agency to 14 rely on mitigation or planned restoration as a means of 15 offsetting project impacts. Specifically, WR-3 states, "Do not 16 use mitigation or planned restoration as a substitute for 17 preventing habitat degradation." 18 That cite can be found at SUPP 1373 in the record. 19 But that's exactly the situation that we have here. 20 The bike facility would be a chronic new source of 21 sedimentation, due to the construction and operation of 22 17 miles of routes through sensitive high-elevation watersheds. 23 But the agency has discounted effects to aquatic habitat and 24 claimed consistency with the ACSO on account of the project's 25 restoration measures. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 17 of 134 18 1 This is not -- this is a legal issue, rather. This 2 is not about deference to the Forest Service's methodology. 3 This is not about the Forest Service's interpretation of its 4 forest plan, and quite frankly, this isn't even about the 5 Forest Service's analysis of the timing and effectiveness of 6 its restoration measures on their own. WR-3 is plain, and it 7 prohibits the Forest Service from using this approach of 8 substituting restoration for habitat degradation as a matter of 9 law. 10 That the Forest Service has taken this approach is 11 clear here from the face of the record, and I can provide a 12 number of cites, but I'll really just get right to the heart of 13 the issue, which I think is summed by the Fisheries Biological 14 Assessment at AR 24035, where the agency states, "Bike park 15 construction and operation will significantly increase 16 short-term and long-term fine sediment into Still Creek and the 17 West Fork Salmon River. To offset this impact, a suite of 18 watershed restoration actions were developed to reduce the 19 total sediment load generated to the project area. This is a 20 structural problem with the entire project because it is flatly 21 inconsistent with WR-3." 22 Now, this -- again, this dispute is not simply 23 academic. The record is replete with scientific studies and 24 empirical evidence that specifically undermines some of the 25 Forest Service's assumptions about the timing and effectiveness Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 18 of 134 19 1 of restoration. And this really confirms the findings of the 2 Northwest Forest Plan and the adoption of WR-3 in the first 3 instance. 4 Your Honor, I would submit that restoration projects 5 are a lot like surgery, and in this case a lot like a very 6 difficult surgery with questionable outcomes. With 7 restoration, you're going in and you're reengineering the 8 landscape and its features, so drainage patterns, vegetation, 9 erosion. Natural ecosystems, just like human bodies, are 10 deeply interconnected. Surgery and restoration requires 11 successful interaction of a number of small steps. Any problem 12 at any one of those small steps can jeopardize the entire 13 process. 14 Now, here with a straightforward procedure, there's 15 going to be a significant post-op time lag before you see any 16 benefits. And here, just like with the difficult experimental 17 surgery, there may be -- may need to be follow-up procedures or 18 even a new procedure altogether. The time lags over the -- the 19 time lags and uncertainty over the benefits of restoration 20 projects are expressly why ACS prohibits the approach of using 21 restoration to offset new habitat degradation. 22 Now the surgery metaphor doesn't quite hold up in 23 that regard with respect to the idea of offsetting impacts, but 24 I think -- 25 THE COURT: As far as planning, no one goes into Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 19 of 134 20 1 surgery without planning. There's a plan to begin with you 2 have, and it's all which is the most effective, least amount of 3 time somebody has to be under anesthesia, and what's the most 4 likely simplest way to get it resolved. But you have a million 5 backup plans because you anticipate there may be, you know, 6 some waver in what you expect to find when you operate, right? 7 MR. STIEFEL: I think that's true, Your Honor. 8 THE COURT: And so when you go into it, have you 9 looked at the highest and best use or the best strategy, and 10 then what do you have in your back pocket to figure out when 11 you get there and it's not what you expect, how you resolve it. 12 But you don't necessarily go in and say, we know exactly what 13 we're going to do in the recovery room because we anticipate 14 these six bad things that are going to happen. 15 MR. STIEFEL: Right. You can't know all of that 16 stuff up front, and I think that that's expressly why, because 17 of some of those uncertainties and questions later on in the 18 process, why the Aquatic Conservation Strategy says we need to 19 protect habitat in the first instance, because all of the 20 questions regarding restoration are so speculative. We don't 21 know the outcomes. And so the ACS here resolved that issue in 22 favor of habitat protection and not using restoration to offset 23 impacts. 24 THE COURT: You have to have your circulatory system 25 really fine tuned before we're going to let you go forward Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 20 of 134 21 1 because the risk of that disruption to the vascular system, so 2 to speak, is too a high risk to take. So they want that 3 resolved ahead of time not at the back end. 4 MR. STIEFEL: And I think that's what the drafters of 5 the Northwest Forest Plan found in 1994, is that we had all of 6 these habitat-disturbing projects that had created this legacy, 7 where there are a number of adverse impacts on the ground. And 8 so it set this restore-and-maintain standard, trying to restore 9 habitat -- the habitat on the landscape, but first maintaining 10 the healthy habitat that we have. 11 So when it comes right down to it, this project is 12 all about trying to address previous impacts from the ski area 13 development: old roads, clearing lift areas, user trails. But 14 the public's interest, as encapsulated by the Northwest Forest 15 Plan, is in how are these impacts addressed in their own right, 16 not as a way of offsetting new impacts. That's really the 17 whole intent of the Aquatic Conservation Strategy, which aims 18 to restore the health of watersheds while ensuring that new 19 projects maintain aquatic ecosystem function. 20 And I would just briefly note that the purpose of the 21 ACS isn't necessarily to block out all uses across the forest. 22 The ACS, of course, does not mean that there can be no mountain 23 biking anywhere, but the ACS does serve as a blueprint for 24 where habitat-degrading actions should take place and how they 25 should be limited. In the words of the ACS, "Land use Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 21 of 134 22 1 activities need to be limited or excluded in those parts of the 2 watershed prone to instability. Headwater riparian areas need 3 to be protected." That's at SUPP 1311. 4 If an activity will not maintain and restore the 5 important characteristics of the Aquatic Conservation Strategy, 6 then that activity should not be in the -- located in the area 7 where it's proposed, or it needs to be limited to the extent 8 that it does meet that restore-and-maintain standard. 9 Now, defendants have indicated that they were going 10 to be relying on this demonstrative map today. 11 And if we could get that on the judge's screen. 12 Is that coming up for you, Your Honor? 13 THE COURT: Yes. 14 MR. STIEFEL: So as we can see from this map, the 15 proposed project is located right on the flanks of Mt. Hood, in 16 sensitive high-elevation habitat. And you can see the 17 outline -- if we can zoom in a little bit on the bike park 18 there. 19 So I believe the defendants will be using this map to 20 try to minimize the impacts of the project based on its size 21 relative to the entirety of the Mt. Hood National Forest, but 22 the 17 miles of trails will actually have a large footprint on 23 this type of habitat. 24 THE COURT: My screen just went blank. 25 MR. STIEFEL: Well, did you get a picture of it? Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 22 of 134 23 1 Let's see. 2 Can you see this map in front of you here? 3 THE COURT: It's back up. 4 MR. STIEFEL: It's back up. Okay. Thanks. 5 So I think as we look at this here, we can see that 6 the 17 miles of bike trails will actually have a large 7 footprint on this type of habitat, which is unique to this 8 elevation band as compared to other areas of the forest at 9 lower elevations. I think defendants are also going to try to 10 use this map to show that there's a relatively small amount of 11 land designated -- 12 THE COURT: You haven't said it out loud, but just 13 for the record, the red areas are the areas we're discussing? 14 MR. STIEFEL: The red areas, I believe, are the areas 15 that are designated winter recreation. 16 THE COURT: Could you describe for the record in 17 color terms the area on the map that you're focusing in on that 18 we're talking about. 19 MR. STIEFEL: So we have four areas that are 20 delineated with red outlines that are on the flanks of Mt. Hood 21 that are designated by the Mt. Hood Forest Plan as A1 winter 22 recreation areas. And I think that the point that defendants 23 are going to make about -- by using this map is that there's 24 only a small number of that designation type A1, winter 25 recreation. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 23 of 134 24 1 But I think the point is that the -- as we can see 2 from the map, there are a number of other locations on the 3 forest where a habitat-degrading project could take place and 4 would still meet the intent of the ACS. And that's really what 5 it comes back to. 6 So this could be lower in the watershed where streams 7 are wider and more channelized so that impacts don't span 8 across so many headwater drainages like we have here. 9 This could be in areas with less fragile soils. Here 10 we're talking about the 4500-foot to 6,000-foot elevation band, 11 highly erodable volcanic soils. And this could even be in 12 areas of the Mt. Hood National Forest in healthier watersheds 13 that have been subject to some habitat degradation but where 14 habitat elements are properly functioning. And here we have 15 all of the habitat elements either not properly functioning or 16 functioning at risk. 17 THE COURT: Just for the sake -- because I'm curious 18 on this point, I'm assuming the defendants are going to argue 19 that they've chosen this area because there are other augmented 20 services all in one particular area that allow them to keep the 21 footprint smaller. In other words, they've got -- they've 22 got -- they can piggyback on some of those winter components 23 that are already in place. 24 MR. STIEFEL: Well -- 25 THE COURT: And so that it's an apples and oranges. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 24 of 134 25 1 MR. STIEFEL: I think the point there is that -- 2 THE COURT: Wait. Let me ask, am I missing 3 something? 4 MR. ODELL: No, you're not at all, Your Honor. 5 That's exactly right. Our main focus in putting it there is 6 not only to be consistent with the congressional direction to 7 utilize existing ski areas for these kinds of summer 8 recreational opportunities, but also because there would not 9 need to be any new infrastructure built whatsoever. Use of 10 existing lodges, restaurants, parking lots, roads, all of that 11 would be realized. And so to put this anywhere else would 12 require a much larger footprint and many more degrading 13 impacts. 14 THE COURT: And I'm going to go back to you and say, 15 I'm assuming in looking at all this that's adjoining properties 16 that might have been entertained as a possible location, you 17 can't point to something that's within the scope of that 18 directive that's less fragile? 19 MR. STIEFEL: Well, I think the point, Your Honor -- 20 THE COURT: Let me ask this. Is that accurate? 21 MR. STIEFEL: That I can't point to any other 22 areas -- 23 THE COURT: Right. No, with -- understanding that 24 the directive is to use existing features that are already in 25 place, the snow -- you know, the access to all of those, the Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 25 of 134 26 1 snow park, the lodge, the places for food, the parking, 2 et cetera. There isn't an adjoining space that allows that to 3 take place that -- 4 MR. STIEFEL: I think that there are a number of 5 other areas on the forest where there is that developed 6 infrastructure, and in our response to amicus briefing, we 7 cited Skibowl, we cited Sandy Ridge. There are a number of 8 other areas on the forest where those recreational 9 opportunities could be expanded. 10 So here, I think the point is that there is a new 11 infrastructure being developed, and that's 17 miles of 12 road-like bike trails. And the point I just want to come back 13 to is that this is about whether this site-specific project is 14 consistent with the ACS. 15 THE COURT: Right. 16 MR. STIEFEL: It's not about the number of acres 17 designated on Mt. Hood's wilderness -- 18 THE COURT: No, I know that. 19 MR. STIEFEL: -- existing infrastructure. It's 20 really about asking the question whether a site-specific 21 project is consistent with the ACS. 22 Here the Forest Service can only answer that question 23 on account of the restoration component of the project. That's 24 why the Forest Service asserts that the restoration projects 25 will offset any impacts. But for all of these reasons that Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 26 of 134 27 1 we've just been talking about today, that approach is not 2 permissible under WR-3 of the Northwest Forest Plan. 3 With that, Your Honor, I'd like to pause for a brief 4 moment on the merits, if I may, and propose just a suggestion 5 for the Court to reach a decision in this case on the narrowest 6 possible grounds. Specifically, I'd propose that the Court 7 could resolve the aquatics issues without having to reach each 8 and every one of plaintiffs' additional claims. Vacating and 9 remanding the agency's respective decisions on the aquatics 10 issues, supplemental NEPA and ESA and NMFA would provide 11 plaintiffs effective relief. And this would also provide the 12 Forest Service the opportunity to address new information that 13 has arisen since the project was authorized with a fresh round 14 of public input. And I think remand on these narrow grounds 15 would provide necessary guidance and direction to the agencies 16 on the central issue here about how to structure the project 17 consistent with the ACS. 18 It would also, as I alluded to, allow the Forest 19 Service the opportunity to address the other issues in play 20 here without the need for judicial intervention. I think it's 21 really important here to recognize how this case has unfolded 22 and the constant stream of new information that has come to 23 light since this project was authorized three years ago. 24 On remand, the agency could realter its proposal, 25 restructure its NEPA process, and also critically would have Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 27 of 134 28 1 the opportunity to involve other stakeholders like the Sandy 2 River Basin Watershed Council, like Xerces Societies, or any of 3 these other stakeholders to the table who aren't parties to the 4 litigation to address critical issues like the effectiveness of 5 the restoration measures, to develop measures to protect the 6 western bumblebee, and critically to weigh the benefits and 7 detriments of this project against the new information with 8 respect to the listed Lower Columbia River steelhead. 9 In particular, with a fresh look at project impacts, 10 the Forest Service may on remand decide to prepare a full EIS 11 on its own, thereby resolving our EIS claim without the need 12 for judicial intervention. 13 The Ninth Circuit, in the Native Ecosystems Council 14 v. Tidwell, specifically envisioned this result, where it 15 stated, "A revised EA considering the issues above might come 16 to a different conclusion than the original EA and necessitate 17 the preparation of an EIS." 18 Now plaintiffs, of course, would prefer if this Court 19 were to reach all of the issues, in particular the MDP claim, 20 because I think it's important to have -- for the agency to 21 have guidance on that claim. I'm not going to get into that 22 issue fully, but I would just point out one issue there, and 23 that's with respect to Mt. Hood Meadows master development plan 24 and the level of public involvement that really came to light 25 with the authorization of that master development plan. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 28 of 134 29 1 And I would point out that that MDP didn't authorize 2 any projects, and there was no ground-disturbing activities, 3 but during the public comment process, the agency received 4 15,000 comments. And I think that underscores the significance 5 of the programmatic stage of the planning process. 6 I think it's also important to point out that after 7 the agency undertook that planning process with Mt. Hood 8 Meadows and with the public site-specific projects that was 9 implemented at Mt. Hood pursuant to that MDP for the past 15 10 years without litigation. 11 I can fully represent here today that my clients have 12 a working relationship with Meadows and are able to resolve 13 most issues precisely because they aren't being surprised by 14 new projects. The Forest Service and Meadows involve the 15 public up front, and that has paid dividends over the long 16 term. 17 All that being said, I'll return to my original point 18 here and suggest the option for the Court to simply resolve the 19 aquatics claims as a means of reaching the narrowest possible 20 grounds for reversal, and this could really streamline and 21 simplify the opinion. I would point out that courts routinely 22 remand just based on a single issue -- set of issues, and 23 that's indeed what this Court just did in the Oregon Wild v. 24 BLM case, where it did not reach the FLPMA issue and vacated 25 and remanded only on that issue. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 29 of 134 30 1 So with the Court's indulgence, I would now like to 2 briefly touch, Your Honor, on the western bumblebee claim, the 3 supplemental NEPA claim, because while this case is focused 4 primarily on the aquatic issues, I think the new information on 5 the western bumblebee is of critical importance. This claim is 6 briefed at pages 44 through 47 of our opening, and 44 through 7 47 of our reply. 8 There is a unique factual scenario here with three 9 separate issues, which in combination require supplementation. 10 First, we have the designation of the western bumblebee as a 11 sensitive species. That means that its biological status has 12 changed. Second, we have the discovery of individuals and 13 likely nesting habitat within the project area. That means 14 that there's a known population that this project will impact. 15 And third, we have express warnings from the invertebrate 16 biologists about the potential for population-wide impacts to 17 this species if this project gets implemented. This is exactly 18 the type of information that needs to be disclosed and 19 considered with the full sweep of full NEPA procedural 20 protections. 21 I think it's important to keep in mind here that 22 sensitive species are those species whose viability is a 23 concern because they have significant or predicted downward 24 trends in numbers or density. Newly available academic studies 25 in the record corroborate the sensitive species designation. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 30 of 134 31 1 The species has experienced a rapid and dramatic decline, and 2 it appears as though existent populations have been restricted 3 to high-elevation sites. 4 Now, because of this documented decline in the 5 species, Xerces Society undertook a major survey on Mt. Hood 6 specifically so that current sightings could provide a basis 7 for protecting remaining populations. Now, based on that 8 study, Xerces wrote to the Forest Service, explaining that 9 high-elevation sites are a critical sanctuary for the species, 10 and we recommend protecting every known population in these 11 areas. 12 All of this is new information that was neither 13 disclosed nor considered in the Forest Service's NEPA analysis. 14 The Forest Service's decision not to supplement was arbitrary 15 and capricious for the fundamental reason that the Forest 16 Service never looked at the significance of this new 17 information as a whole, and instead made policy choices about 18 how to mitigate potentially population-wide impacts to the 19 species without notice and comment involving the public. 20 So in terms of assessing significance, the Forest 21 Service in its SIR really shot at the wrong target. That would 22 indicate that the agency failed to take the requisite hard 23 look. That is because the majority of the analysis focuses on 24 why the agency does not believe that impacts to foraging 25 habitat will be significant. So the central conclusion of the Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 31 of 134 32 1 2013 consistency review is that such a low level of really zero 2 habitat disturbance is unlikely to impact foraging habitat for 3 the western bumblebee to negatively affect population. 4 But, of course, that's not the critical aspect of the 5 problem here. The risk to -- the risk of population-level 6 impacts has to do with the risk of damaging nesting sites and 7 trampling overwintering queens. 8 But rather than assess the significance of that new 9 information, the Forest Service fell back on new project design 10 criteria to allegedly mitigate any risks. But the addition of 11 a new PDC here is exactly the type of process that should occur 12 in accordance with the NEPA procedural protections, such as 13 public involvement, expert comments, and scientific integrity. 14 As the Ninth Circuit has expressly instructed, 15 post-decision reviews may only make a determination of the 16 initial significance of the new information. They can't 17 supplement any documentation required if that significance 18 threshold were met. That, of course, is the Idaho Sporting 19 Congress case. 20 But here, the agency in developing new PDC and making 21 policy determinations is effectively changing its decision. 22 This goes well beyond the scope -- the allowable scope of the 23 supplemental information. 24 Indeed, here we have the agency weighing the proper 25 degree of protections for the western bumblebee against other Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 32 of 134 33 1 resource considerations without any public involvement and 2 without weighing the degree of protections against specific 3 Forest plan direction like FW-175, which provides that habitat 4 for sensitive species shall be protected and/or improved; 5 FW-185, which provides that other resource values may be 6 limited or precluded in localized areas to facilitate recovery 7 for sensitive species. 8 So, in essence, the Forest Service here is trying to 9 have it both ways. On the one hand, they're saying, well, this 10 isn't significant enough to require supplementation, but on the 11 other hand, it's saying, well, it is significant enough so as 12 to actually change the decision and add new project design 13 criteria to allegedly mitigate any risks. So obviously there's 14 a major concern here if the agency feels the need to change the 15 decision. 16 But the designation of the bee as a sensitive 17 species, the availability of new information about its dramatic 18 decline, and the critical importance of high-elevation habitat 19 and significant risks of population-level impacts from 20 implementation of the project requires supplementation here. 21 So with that point, Your Honor, I know that I've 22 spent a considerable amount of time on four of the six claims, 23 so unless Your Honor has any questions about those remaining 24 claims on the master development plan or the EIS, I'll rest on 25 my briefing, and would like the opportunity for a brief Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 33 of 134 34 1 rebuttal. 2 THE COURT: No, thank you. You gave me a pragmatic 3 option to take a look at, so I'm hoping the defendants address 4 all these issues that you raised. Thank you. 5 MR. ODELL: Thank you, Your Honor. 6 Just by way of an overview in terms of the framework 7 for how we'd like to proceed with our time, the federal 8 defendants, we will -- Sean and I will divide our time up based 9 on the different issues. We don't intend on addressing any of 10 the motions that relate to the record, in particular the 11 motions to strike. 12 THE COURT: All right. I don't need to hear them 13 because I can handle those all under advisement. 14 MR. ODELL: That sounds good. So unless you have a 15 question -- which obviously it sounds like you do not -- we 16 won't address those whatsoever. 17 I will begin with providing the contextual review, 18 utilizing the map that Mr. Stiefel had referred to earlier. I 19 will turn it over to Mr. Martin to address some of the initial 20 NEPA claims, and then I'll take over and address the rest of 21 the NEPA claims, the NMFA claims, and the ESA claims. 22 So may I approach the map, Your Honor? 23 THE COURT: Sure. You don't have to ask permission. 24 That's fine. 25 Why don't you pull it over here. We have lots of Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 34 of 134 35 1 onlookers who want to see it. If you could put it up on that 2 table. You can lean it against the wall. Does that work? 3 Okay. If you're going to use that far corner, push it over. 4 MR. ODELL: This way? 5 THE COURT: That's fine. 6 MR. ODELL: I want to start with this map by way of 7 providing some context for this decision and to help provide 8 the Court with an opportunity to see that the scale of this map 9 and the scale of this forest really do help to put in 10 perspective what we're talking about here. Okay? 11 So -- and we went over some of these numbers in our 12 brief, but I think to see it visually depicted is very helpful. 13 THE COURT: Even better to see it when you hike on 14 it, which I've done, or ski on it, which I've done. 15 MR. ODELL: All right. Okay. 16 THE COURT: I'm familiar with going up and down that 17 mountain a number of times. 18 MR. ODELL: So what we've got here, Your Honor, is we 19 start by pointing out that the forest itself is over a million 20 acres in size. Nearly a third of the mountain is wilderness. 21 All of these dark green areas are wilderness. 22 The Mt. Hood Wilderness itself is nearly 7,000 acres 23 in size. Approximately 20,000 acres were recently added, which 24 closed off over 100 miles of mountain biking trails at that 25 point in time. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 35 of 134 36 1 No mountain bike use is allowed at all within the 2 wilderness areas of the forest, so all this dark green. The 3 orange outline which you see here is the Zigzag Ranger District 4 in which this project is located. 5 In addition to all the wilderness, in which obviously 6 no developed recreation of any kind or any development of any 7 other type is allowed, we have the Bull Run Water Management 8 Unit that is completely off limits to any use whatsoever unless 9 it has to do with protection of the water supply or management 10 of the hydroelectric systems within that unit. And that is 11 approximately 102 square miles in size. 12 So then you have these areas set aside for the ski 13 areas, which as Mr. Stiefel pointed out, this here is 14 Timberline, a special use permit area, which is approximately 15 1400 acres in size, and the amount of acres that will be 16 disturbed as a result of this mountain bike park -- in part 17 because of the utilization of the existing infrastructure 18 already in place on the mountain -- is 12 acres. So less than 19 1 percent of the 1400-acre special use permit area would be 20 disturbed as a result of putting in these mountain bike trails. 21 In addition to that, there's been some discussion 22 about the impacts to the riparian reserves. I think that's 23 most important. Within the project area there are 24 approximately 300 acres of riparian reserves which are 25 protected under the Northwest Forest Plan. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 36 of 134 37 1 Based on careful layout of these trails to avoid 2 riparian reserves, this particular project is going to impact 3 just over 2 acres out of the almost 300 within the project 4 area, which you don't have to be a mathematician to figure out 5 is less than 1 percent. So a very minute amount of riparian 6 area is going to be impacted as a result of this project. 7 In addition, there are 300 trails, hiking trails 8 within the wilderness areas, as we would point out as well. 9 We also have the closest Lower Columbia River 10 steelhead population over one mile downstream from the project 11 area. There is effectively an impenetrable barrier, Highway 12 26, which is over a mile away. 13 So there is just a little piece of critical habitat 14 that was designated by NMFS that is in the very bottom part of 15 the project area, but it is not occupied, nor can it be because 16 of the barrier that exists downstream. 17 And that goes to the point Your Honor, I think, asked 18 me about earlier during Mr. Stiefel's presentation with respect 19 to just a few individuals may be affected as a result of this 20 particular project, which is what NMFS has said in its 21 biological opinion. 22 With respect to his assertion that are other places 23 on this mountain that can satisfy the need to put in a mountain 24 bike park like this, with respect, federal defendants do not 25 agree. First of all, with Skibowl, you already have some Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 37 of 134 38 1 mountain bike trails there, but those are primarily advanced, 2 more steep-pitched mountain bike trails. Most of what is going 3 to go in here at Timberline -- assuming we're successful in 4 this case, that is -- would be for beginners and 5 intermediate-level terrain, and part of that is because 6 Timberline has decided it wants to make this a family-friendly 7 park. That's part of the reason they're putting in a skills 8 park, too, which is only going to impact about 0.2 acres, 9 but -- 10 THE COURT: Which, frankly, nobody in their briefing 11 really talked about very much. 12 MR. ODELL: Right. The skills park, correct. 13 But just by way of, again, contextually, part of the 14 purpose of this is to provide for families and beginner riders 15 an opportunity to learn how to mountain bike and enjoy the 16 mountain. 17 THE COURT: Right. 18 MR. ODELL: And along the same lines, Your Honor, 19 frankly, we have to remember here that the Forest Service is 20 operating in response to a special use permit application from 21 Timberline. Timberline has a special use permit for this area, 22 wants to make use of it for this particular reason, and the 23 Forest Service has an obligation then to evaluate that request 24 and decide does this meet our environmental objectives and our 25 land and resource management plan of action, and if it does, Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 38 of 134 39 1 after consideration and hard look at environmental effects, the 2 Forest Service has to grant the approval of that, which is what 3 they did here. 4 In fact, in addition to that, more than it's just 5 allowed in this particular location, this particular kind of 6 use has been contemplated and foreshadowed for this particular 7 area since, I think we point out in our brief, at least the 8 1930s, when President Roosevelt dedicated Timberline Lodge and 9 talked about providing recreational opportunities in all four 10 seasons. 11 Then in 2011, in the Ski Area Enhancement 12 Recreational Opportunity Act, Congress added its voice in 13 support, unanimously supported the bill, and said that in order 14 to provide for these summer recreational opportunities on ski 15 areas, many of which are having economic difficulties providing 16 for revenue through all four seasons of the year, want to 17 provide more opportunities for their employees to be able to 18 work all around the year instead of just being seasonal, to 19 help support family wage jobs, and to avoid having to punch in 20 new areas and new development, take advantage of the existing 21 infrastructure. Only one existing chairlift will be utilized. 22 And I know we talked about no other infrastructure, just the 23 trails themselves, will be built here. 24 So it's not only contemplated and allowed, but it's 25 actually something that Congress has now specifically Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 39 of 134 40 1 delineated as a use that is preferred and that the Forest 2 Service should provide an opportunity for existing ski area 3 permit holders such as Timberline to make use of in this 4 particular area. 5 So this hopefully will give you a little context of 6 what we're talking about, and the extremely small amount of 7 impacts, and why it's not only the use that is contemplated but 8 also is preferred. 9 So with that, I will ask Doug, can you pull up the 10 project line map, which is 27738. 11 Right. So this is now another piece of significance, 12 Your Honor, which is important. This case relates to 13 intensity, the intensity of the impact. So here this is a map 14 that shows the land allocations and the proposed trails in a 15 particular area. What happened was when the Forest Service got 16 the proposal from Timberline, there were a total of 12 trails 17 that were proposed. As evaluated and eventually revised by the 18 Forest Service, now there are only eight trails. 19 In addition, the original footprint of the trails was 20 going to be 18 acres. The Forest Service minimized and avoided 21 impacts, so now we're down to a total of 12 acres that are 22 going to be affected and disturbed as a result of the trail 23 system. And, in addition, only 2 acres, as I mentioned before, 24 of those are within riparian reserves. There will be no 25 cutting of any trees that are larger than 6 inches diameter at Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 40 of 134 41 1 breast height. 2 In addition, the Forest Service, in conjunction with 3 RLK and a consulting firm that develops bike parks out of 4 Canada, they have made use of additional avoidance and 5 minimization features, including grade reversals, which do two 6 things: one, they slow the rider down. A grade reversal 7 effectively is to utilize -- 8 THE COURT: I know what that is. 9 MR. ODELL: Yes, okay. 10 So it slows the rider down so there's less dirt or 11 soil that's disturbed. At the same time, they operate as a way 12 to catch sediment or other water flow that might be coming down 13 the trail. 14 There's going to be use of rolling dips, sediment 15 traps, armoring with wood and rock, bridges and culverts, pitch 16 of trails. The average trail has to be at a pitch of no more 17 than 40 percent on average. Routine cleaning out of the 18 sediment basins, daily monitoring of the trails, use of between 19 70 to 90 wooden features to avoid sensitive areas, for the most 20 part having the trails go across the fall lines to again avoid 21 having water streaming down the mountain gullies and those 22 kinds of potential erosion effects that would result from that. 23 And on top of this, in the EA, at pages 27766 to 78, 24 we have 13 pages of project design criteria and monitoring 25 requirements that the Forest Service is implementing. So to Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 41 of 134 42 1 use the surgery metaphor that Mr. Stiefel raised earlier, there 2 are a tremendous amount of planning and other requirements that 3 go into the design of this particular project to make sure that 4 the effects will stay within those that have been projected and 5 analyzed in the EA. 6 In addition, the Forest Service added restoration 7 elements. Now, this is not, as Mr. Stiefel was suggesting, 8 simply a way for the Forest Service to get out from under a 9 significance finding so we wouldn't have to do an EIS. In 10 fact, there's a long history on the forest of utilizing project 11 opportunities to do restoration at the same time, and this has 12 been done through road decommissionings that have been taking 13 place on the forest, and in particular in the Zigzag Ranger 14 District now for the last decade. 15 And so, as a result of that, the Forest Service 16 thought that it would be beneficial to decommission and 17 stabilize approximately 2 miles of roads that are currently 18 contributing sediment to nearby streams, and also restore seven 19 sites. It's going to resurface existing roads with 6 inches of 20 gravel to reduce the erosion potential by some 90 percent. 21 And these restoration projects should not be used, 22 the federal defendants believe, as a way to penalize the Forest 23 Service. The Forest Service ought to be lauded for including 24 these elements in the project as a way of improving even 25 further the sedimentation potential for this area. So we're Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 42 of 134 43 1 dealing with existing chronic sources of sedimentation that 2 would be redressed at the same time the Forest Service went 3 through a grueling process to ensure that the effects from the 4 trails themselves would be minimized to the absolute maximum 5 extent possible. 6 So really, in light of that, Your Honor, this case 7 boils down to two fundamental types of disagreement: the first 8 is whether or not this particular use should be allowed on the 9 mountain, and in particular at Timberline Lodge, or in that 10 special use permit area for Timberline. That is a decision 11 within the realm of the discretion of the Forest Service. 12 Again, so long as the Forest Service can come to that 13 conclusion upon finding that it is consistent with all land 14 management directions, statutory obligations, and after taking 15 a hard look at all the environmental effects, this 16 environmental assessment is extraordinary thorough on all 17 fronts, especially in terms of aquatic impacts and hydrologic 18 impacts, extensive use of modeling, extensive use of data, all 19 the ground survey work, working to contour and configure these 20 trails to avoid impacts, as I said earlier, to the maximum 21 extent possible, and then adding on top of that, not to offset 22 those effects, but adding on top of that some additional 23 restoration elements that are going to lead to a net reduction 24 in sediment. 25 This project -- you would not have guessed it from Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 43 of 134 44 1 listening to the plaintiffs' recitation earlier, but this 2 project is going to lead to a net reduction in sedimentation in 3 the two most affected subwatersheds, the Still Creek watershed 4 and the West Fork Salmon River watershed. That is hugely 5 significant, Your Honor, on the upside, on the positive side 6 for this particular area. 7 And so with all due respect, the federal defendants 8 are of the view that this particular use is appropriate for 9 this area. The Forest Service found after a very in-depth 10 analysis that it should be authorized. They have done the hard 11 look they needed to do. 12 The second level of disagreement really relates to 13 what are the effects going to be from this particular project. 14 At one level or another, whether it's the bumblebee or whether 15 it's sedimentation, whether it's impacts to LCR steelhead, 16 again and again, there is a simple fundamental disagreement 17 that the plaintiffs have about what the effects of this action 18 are going to be. And as Your Honor is well aware, when there's 19 a disagreement among the experts, the agency is entitled to 20 reliance on its own experts, and the Court has the 21 responsibility, with respect, to defer to the reasoned and 22 well-supported conclusions of its own experts. 23 So in light of those two factors, hopefully that will 24 set the framework for the rest of our arguments. So I'm going 25 to turn the argument over to Mr. Martin, who will be addressing Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 44 of 134 45 1 those. 2 MR. MARTIN: Thank you, Your Honor. 3 As Mr. Odell indicated, we sort of divvied up the 4 argument, and I'm going to talk first about the conceptual 5 plan, and then I'll move to the two supplemental NEPA 6 arguments, first the western bumblebee, and secondly the 7 August 2014 biological opinion from the National Marine 8 Fisheries Service, which I will probably start referring to as 9 NMFS, which is the shorthand for that agency. 10 Most of this case, Your Honor, as you know, is about 11 the 2012, I believe, NEPA decision by the Forest Service on the 12 mountain bike park, but sort of a fundamental jurisdictional 13 problem for the defendants is the additional claims made 14 against the 2009 one-page acceptance of RLK's master 15 development plan. That's, I think, 10882. 16 And it's on the computer screen, Your Honor. This 17 was, like I said, a brief acceptance by the Forest Service back 18 in 2009 of a conceptual overview, sort of a vision document 19 that RLK prepared for some possible projects for the Timberline 20 resort going forward. 21 As you can see from the second of the three 22 paragraphs, the Forest Service, as plain as day, by accepting 23 that conceptual plan, it didn't convey any approval of any of 24 the projects. And these projects are the -- I think there was 25 a tubing hill and a day lodge and a parking facility. And Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 45 of 134 46 1 needless to say, none of those projects have really gone 2 anywhere since 2009. So the Forest Service viewed this initial 3 acceptance as almost like -- kind of like a 30,000-foot-view 4 business feasibility call. 5 Mr. Odell mentioned the 2011 ski area improvement 6 legislation. And I think I will state a point from that act. 7 Congress made a determination in 2011 it wanted to encourage 8 developments in ski areas, but it is also clear that tennis 9 courts and swimming pools just wouldn't be acceptable on 10 National Forest System lands. So the whole point in a bigger 11 picture to doing an initial quick look at a vision is to sort 12 of see or screen out whether a proposal for something in the 13 future is going to have something that's just not going to be 14 compatible with that Forest Service. 15 Now, here, the Forest Service made sort of an initial 16 conceptual acceptance that it seemed feasible, but it wasn't 17 going to do NEPA until things got more concrete. 18 If you could look at 10881. 19 And, Your Honor, this was -- this is the Forest 20 Service's national policy, which predates the letter to RLK, 21 stating that -- the Forest Service's national position that 22 master development plans, conceptual plans, don't require NEPA. 23 So federal defendants' view, Your Honor, is that 24 certainly, assuming that this one-page letter is final agency 25 action, with the legal ramifications and is the consummation of Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 46 of 134 47 1 the decision-making process, which we've briefed extensively -- 2 we don't believe it is -- it certainly isn't arbitrary and 3 capricious for the Forest Service to act right in line with its 4 national policy. 5 Just one more document from the record, Your Honor, 6 to aid in understanding the context of the master development 7 plan versus NEPA and specific proposals is 10914. This is a 8 Stevens Pass master development plan related, Your Honor. This 9 is a different -- this is a national forest up in the state of 10 Washington, where there was a mountain bike park proposal that 11 went through NEPA. 12 As you can see from the bottom half of this page, you 13 know, the Forest Service similarly, as in our situation, 14 recited that you have a conceptual plan that represents a 15 vision for the long term, but in terms of NEPA, the Forest 16 Service focuses on those specific aspects that the ski area is 17 going to move forward to. And here with Stevens Pass, it 18 wasn't everything in their plan, you know. Like Timberline, it 19 wasn't the tubing hill, it wasn't the day lodge, it was the 20 mountain bike park. 21 In fact, Your Honor, a district court in Colorado, 22 Ark Initiative -- which is again briefed -- reached the issue 23 of a master development plan in terms of a ski area, whether 24 that document itself, acceptance of that document, required 25 NEPA. The district court concluded it did not, and that Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 47 of 134 48 1 decision was affirmed by the Tenth Circuit Court of Appeals. 2 Mr. Stiefel mentioned briefly the Mt. Hood Meadows 3 master development plan, which is I think back to the early 4 2000s, and that resulted in litigation, Friends of Mt. Hood 5 case, which the parties have discussed. And we take issue with 6 his characterization of that master development plan. Quite 7 unlike the conceptual plan here, Your Honor, in Friends of 8 Mt. Hood, in that litigation, the master development plan 9 changed land designations, it increased the size of the 10 developed area by 96 acres, it lowered visual quality 11 standards. None of those things occurred with the one-page 12 acceptance by the Forest Service of the master plan. 13 And just as a final observation, Your Honor, nothing 14 is going to escape NEPA review in the future if RLK decides it 15 wants to get more concrete on its vision, if it wants to move 16 forward with the tubing hill, for example. 17 THE COURT: As far as I can tell, in its conceptual 18 plan it gives the people an idea what the future might look 19 like and then gives people a chance to say, you know, which 20 segments they want to take off on, and that would result in 21 review in either an administrative process or go through with 22 the court, so -- 23 MR. MARTIN: That's correct. 24 THE COURT: -- I understood that. I took it as that 25 was just sort of forecasting what are the planned amenities for Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 48 of 134 49 1 the public lands. 2 MR. MARTIN: That's right, Your Honor. So the point 3 is nothing is going to escape NEPA review, right? If RLK makes 4 a push in the future, it's going to go through NEPA. 5 THE COURT: If we actually have snow, then we'll get 6 to go back and do things with snow. But right now biking is 7 what people are pursuing because of the direction of the 8 Congress that there needs to be these other aspects that are 9 robust in the other seasons of the year. 10 But I haven't used Willamette Pass, as an example, or 11 the forest down there, because there hasn't been snow, and it 12 hasn't been opened for two years. Right? 13 MR. MARTIN: That's right. 14 And you're right, Your Honor, it is more of a focus 15 on that point. Mt. Bachelor now has a mountain bike park. 16 THE COURT: Yes, they do. They still haven't gotten 17 snow. 18 MR. MARTIN: Well, there was some snow the other day 19 on Mt. Hood. So we sure hope it sticks up there. 20 And the final point on the conceptual plan, Your 21 Honor. It's been briefed by not only by the parties but the 22 amicus. So the federal defendants believe it would be 23 appropriate to address that claim and the other claims in your 24 decision to avoid potential piecemeal, and -- 25 THE COURT: I'm not interested in piecemeal, just so Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 49 of 134 50 1 you know. I'm going to try and be -- you know, just really 2 look at this. And so I appreciate the approach that was 3 offered, and I'm not interested in doing it piecemeal. I'd 4 like to hear as much as I can and do what I need to get done, 5 what I think might put this in a different posture a little 6 bit, but I'm not interested in piecemeal. 7 MR. MARTIN: Thank you, Your Honor. 8 Well, what I'll do now is I'll turn to the two 9 supplemental NEPA claims, the two supplemental NEPA arguments. 10 The first is the claim by the plaintiffs that given 11 the post-decisional discovery of western bumblebee up at 12 Timberline Lodge developed area, the Forest Service was 13 required to actually reopen NEPA with public comment. 14 Again, this is discussed in the briefing, including 15 at pages 42 and 44 of our summary judgment reply. I think it's 16 important to bear in mind the Ninth Circuit Court of Appeals 17 standard and how it approaches a Forest Service decision about 18 whether or not to do supplemental NEPA, and how it looks at the 19 decision by the Forest Service not to do supplemental NEPA. 20 The standard it applies is whether it was a clear error of 21 judgment and whether the environmental harms that are discussed 22 present a seriously different picture of the likely 23 environmental harms. 24 Here with the bumblebee, Your Honor, the record 25 establishes that in light of the adaptive management that the Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 50 of 134 51 1 Forest Service discussed and implemented in this December -- I 2 believe December of 2013 review, that it was not a serious -- 3 there would not be a seriously different pictures of the 4 environmental effects, and formally reopening the NEPA process 5 wasn't required. 6 I think it's critical to observe in that document, 7 Your Honor, which is at the Forest Service second supplement, 8 886 to 904, that the Forest Service heard and responded point 9 by point to the recommendations of the Xerces Society, which is 10 a private group focused on invertebrates. The Forest Service 11 point by point discussed the five recommendations that the 12 Xerces Society had made to the Forest Service, and the Forest 13 Service did this discussion after going on site to review where 14 the bees were located and after having input not only from a 15 biologist but an entomologist. 16 And the Forest Service made its judgment call in 17 light of the fact that there are protections in place in this 18 project, Your Honor, not only for foraging, which is what 19 Mr. Stiefel said, that they only focused on the foraging, but 20 also overwintering and nesting. 21 There are three specific requirements that the Forest 22 Service through its discretion to adaptively manage the project 23 required that there be a shorter construction season to avoid 24 harm to the overwintering queens; secondly, it required there 25 be preconstruction surveys for bees nests, and that Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 51 of 134 52 1 construction personnel be trained in being able to identify the 2 bee and directed that construction personnel actively look for 3 the bee during construction not just before. And again the 4 concern there is to avoid any harm to bees nests. As Mr. Odell 5 indicated, we're talking about 12 acres of ground disturbance 6 on these trails. But the Forest Service doesn't want to, you 7 know, have a trail literally be anywhere close to a located 8 bees nest. 9 The third requirement the Forest Service put into 10 place was that if there are bees nests located, the trails are 11 going to have to be rerouted. And it indicated the distance 12 and the rationale for how close bees nests would need to be for 13 there to need to be a rerouting. 14 It's also noteworthy that the bees that have been 15 located up there have been located by the Timberline Lodge 16 itself, you know, by the parking area where the people go in to 17 have a cocktail or get a drink by the fireplace, as opposed to 18 downhill in the woods below the lower lodge where the actual 19 mountain bike trails are. 20 So federal defendants' view, Your Honor, is that the 21 process worked here. After the fact of the decision, there was 22 a discovery of these western bumblebees. The Forest Service 23 heard from the interested members of the public, the Xerces 24 Society, and it took those concerns seriously and responded 25 point by point. And the record doesn't show us, Your Honor, Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 52 of 134 53 1 that there was ever any follow-up by Xerces that the 2 accommodation reached was not to their liking or that it wasn't 3 a perfect balance. 4 And I believe the plaintiffs' briefing, Your Honor, 5 on this issue points out that the Forest Service is not 6 obligated to follow every outside group's recommendation. It 7 has a multiple use mandate as an agency, as you know. 8 So in our view, Your Honor, under the case law there 9 wasn't a clear error of judgment. The new information, in 10 light of the adaptive management, you know, didn't present a 11 seriously different picture on the likely environmental harms 12 on the western bumblebee, given the various protections and 13 given the limited scope and intensity of this project. So 14 given the protections put into place, Your Honor, the United 15 States Forest Service made a rational decision against formally 16 reopening further NEPA procedures. 17 Unless you have questions, Your Honor, I think I'll 18 proceed on to the biological opinion and supplemental NEPA. 19 And this discussion, Your Honor, in addition to the 20 opening brief, is at pages 33 to 41 of the federal defendants' 21 reply briefing. 22 And this new information review, this was the 23 following year. The bumblebee, Your Honor, was in late 2013. 24 The Forest Service took a look at some developments in late 25 2014, including NMFS's decision to prepare a biological opinion Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 53 of 134 54 1 about potential effects on Lower Columbia River steelhead. And 2 this new information review, Your Honor, is at the Forest 3 Service second supplement, 4242 to 53. 4 It wasn't a clear error of judgment, Your Honor, for 5 the Forest Service to determine after examining the biological 6 opinion, the substance of the biological opinion, and examining 7 the terms and conditions of the biological opinion that 8 additional NEPA review was not needed under the circumstances. 9 And let me back us up and walk you through that 10 conclusion. 11 It's important to keep in mind that when NMFS issued 12 the BiOp, and even earlier in 2014, it made clear that, citing 13 to its regulations, 50 CFR 402.16, that it wasn't finding, it 14 wasn't concluding in any way that there was new information 15 about this project when you view all the facts that might 16 affect this steelhead in a manner or to an extent that it 17 hadn't previously considered. It was clear about that, that it 18 was doing an additional detailed review, but not because it 19 felt that there was some sort of trigger, that the project had 20 changed or that it hadn't taken something into account. 21 To the contrary, candidly, Your Honor, NMFS was 22 concerned that its prior analysis of this project, what was 23 done as -- I might call it a letter of concurrence and I might 24 call it an LOC, that what that had done actually wasn't quite 25 in line with its internal guidances and policies, that NMFS Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 54 of 134 55 1 realized that under its internal policy in its handbook -- and, 2 Your Honor, the handbook isn't in the administrative record, 3 but it's available online and both of the parties have cited 4 that document and cited to its internet hyperlink location. 5 I'll point you to page 42 of the plaintiffs' opening brief and 6 page 39 of the federal defendants' reply brief. 7 NMFS was concerned when it looked back at that letter 8 of concurrence, Your Honor, that it wasn't quite in line with 9 its ESA policies. You know, NMFS realized that under its 10 policy that even a net positive project, a project that 11 actually has a net positive impact on a listed species must be, 12 in ESA parlance, an LAA. So frankly, you know, NMFS realized 13 it might have goofed and wasn't following its own internal 14 policies, and realized that gosh, what we need to do is prepare 15 a biological opinion, which is what we prepare if we believe 16 there is an LAA. 17 And here, under our policy that if there is an LAA, 18 because there are going to be some adverse impacts from this 19 project, although there's going to be positive impacts -- and 20 like I said, under their handbook, if there's any negative 21 impacts whatsoever, they're required under the ESA, under their 22 policies, to do an LLA, as they call it. 23 Does that make sense? 24 THE COURT: (Nods head.) 25 MR. MARTIN: So there's quite a very low threshold Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 55 of 134 56 1 for NMFS to need to reach an LAA under the Endangered Species 2 Act. If there's any kind of negative impact on the project, 3 they're going to need to do that. So that's what they decided 4 they needed to do. 5 So then we look at the biological opinion, and then 6 the Forest Service looking carefully at that biological opinion 7 in late 2014, what we see is, you know, it's obviously a much 8 more detailed analysis spatially and temporally about the 9 aspects of the project and what's going to happen where and 10 when and the different types of sedimentation, pro and con, 11 long term and short term. 12 But what the Forest Service noticed -- and Mr. Odell 13 mentioned, you know, the baseline fact that there actually 14 aren't any of the listed steelhead within more than a mile, 15 that it is critical habitat at the lower end of this project, 16 but there's a culvert blocking them from really being there in 17 the first place. 18 But even more importantly, NMFS in the biological 19 opinion, Your Honor, pointed out that the primary constituent 20 elements for the listed species, fresh water spawning sites and 21 fresh water rearing sites with sufficient water quality and 22 quantity, that this project would not further degrade those 23 primary constituent elements, that rearing and spawning, which 24 depend on water quality and quantity, would be maintained. And 25 that is at NMFS' administrative record 771, and the primary Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 56 of 134 57 1 constituent elements, Your Honor, are discussed at NMFS 754. 2 NMFS also concluded that Lower Columbia River 3 steelhead productivity will continue to increase downstream of 4 the project area, to increase in combination with this project. 5 This project will have some negative impact, but given other 6 Forest Service land management, that more fish will be born, 7 productivity will increase downstream. 8 NMFS also took into account at NMFS 669 to 70 that 9 there's a very small number of individuals that would be 10 adversely affected by the project. NMFS also concluded that 11 there would be only a very small portion of occupied habitat 12 that would be affected by this project, and that's at NMFS 770. 13 NMFS also concluded, Your Honor, that the project 14 would largely affect marginal quality habitat that is not 15 particularly important nor productive for the steelhead. And 16 that's at NMFS administrative record 770. 17 THE COURT: Well, how do you reconcile this with 18 Wildlands v. Forest Service, 791 F.Supp? 19 MR. MARTIN: Well, that was a different situation, 20 Your Honor. 21 THE COURT: Tell me how -- why is it different. 22 MR. MARTIN: Well, let me just start talking about 23 that. I think what we know here is that after the biological 24 -- the biological opinion in this case put in requirements, 25 terms and conditions that the Forest Service noted in late 2014 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 57 of 134 58 1 in looking at biological opinion, that increased protections, 2 because the terms and conditions of the biological opinion had 3 more teeth. They were similar to what the EA project design 4 criteria were but they were even further protective. 5 THE COURT: But no public comment? 6 MR. MARTIN: No public comment. No public comment on 7 that, Your Honor. 8 But to that point, Your Honor, it's been clear from 9 the beginning that the plaintiffs have very specific views 10 about this project and negative impacts on the Lower Columbia 11 River steelhead. They're entitled to those views and they've 12 presented those views extensively all throughout the NEPA 13 process. So it's not really a failing in the NEPA process. 14 All along they've been able to make those assertions, right, 15 and those assertions were considered by the Forest Service 16 during the earlier part of the NEPA analysis. So to 17 mechanically restart it simply to restate the prior protections 18 wasn't arbitrary and capricious, Your Honor. 19 And the Wildlands decision you bring up, definitely a 20 different set of circumstances. There there was a long delay, 21 where there was an error by the Forest Service. There was an 22 error by the Forest Service where documents mistakenly 23 presented the situation as an LAA. 24 THE COURT: So you're saying they were robust in 25 their comments and questions early on, the decisions were made, Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 58 of 134 59 1 there was new information, you went back and not only relooked 2 at it, but you augmented and increased the protections, and 3 because they had been publicly engaged throughout with the same 4 issues, that obligation essentially has been met -- 5 MR. MARTIN: Right. 6 THE COURT: -- and you've gone the extra step to 7 protect where you have new information regarding the BiOp 8 report? 9 MR. MARTIN: That's right. 10 I think it's critical to bear in mind that NMFS 11 itself told the Forest Service, we're doing this BiOp, the 12 biological opinion, but we don't believe that re-initiation 13 triggers, right? Technically, right, it's binary, it's an LAA 14 or an NLAA. And they made the call, well, you know, we don't 15 think that this is -- there's things we didn't really take into 16 account the first time, but we realize that technically under 17 the ESA, we need to do it this way. 18 But keep in mind also, Your Honor, that a binary 19 distinction about what you're not to do when you're NMFS under 20 the ESA doesn't mean something is significant under NEPA to 21 reopen the process again. 22 And here, what I've been trying to lay out is that 23 the Forest Service looked at those key points in the biological 24 opinion and realized that the analysis showed pretty marginal, 25 pretty minor effects on the Lower Columbia River steelhead, and Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 59 of 134 60 1 it made what we believe is a rational call that, you know, 2 given the context intensity of those facts, it wouldn't be 3 required to start over in NEPA. 4 It's also important to bear in mind, Your Honor, that 5 whether it's an LOC or a biological opinion, that the courts 6 have recognized that it's -- public comment into that ESA 7 analysis is not part of the equation for those scientific 8 agencies. I don't want to forget about that. 9 So, Your Honor, there's a big difference between an 10 ESA trigger and a NEPA significance factor. This is in 11 briefing, but I point your attention to the EPIC, Environmental 12 Protection Information Center, a case from the Ninth Circuit, 13 2006, which involved a Forest Service EA that relied, as here, 14 on a no jeopardy to a species and a biological opinion that 15 called for take of northern spotted oil. But the Ninth Circuit 16 concluded that there wasn't a NEPA violation, and that, in 17 other words, an EA can account for take and not rise to the 18 level of significance, because really in NEPA, Your Honor, you 19 look to the impacts to the species as a whole. That's the 20 prism that NEPA looks at in terms of significance and not the 21 individuals. 22 And here, when the Forest Service looked at that 23 biological opinion and realized that this is -- we're talking 24 about localized effects to individuals. 25 Does that address your concern? Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 60 of 134 61 1 THE COURT: Yes, it does. 2 MR. MARTIN: Okay. So unless, Your Honor, you have 3 further questions, I thought I would turn the discussion over 4 to Mr. Odell on the remaining claims before you. 5 THE COURT: No. 6 MR. ODELL: Thank you, Your Honor. The remaining 7 NEPA claim that I would -- 8 THE COURT: Let me ask something. 9 MR. ODELL: Sure. 10 THE CLERK: Where can you find the turbidity 11 thresholds? Where is that in the bio reported? Can you 12 address just that issue? There's no reference to explaining 13 where that -- there's a discussion about turbidity but it 14 doesn't give thresholds so that we have any sort of range to 15 take a look at what's in there, where it is, what are the 16 standards. 17 MR. ODELL: In the biological opinion or the EA? 18 THE COURT: In the BiOp, yes. 19 MR. ODELL: In the biological opinion. Okay. Thank 20 you, Your Honor. 21 So I will start today with the NEPA -- the NEPA claim 22 which relates to significance and whether or not an EIS was 23 required here. And Mr. Stiefel didn't address this at any 24 length in his opening, so I will try to run through that claim 25 rather quickly. There are some points I want to highlight. We Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 61 of 134 62 1 did brief it fairly extensively, Your Honor. 2 First with respect to the standard of review, I think 3 it's fair to say that there are a number of different 4 formulations that courts have used in evaluating whether or not 5 an EIS needs to be prepared for a particular project. What is 6 not in dispute, however, is the fact that the applicable 7 standard for the Court's review is arbitrary and capricious and 8 not any kind of a de novo finding by Your Honor as to whether 9 or not a significant impact will occur or may occur or whether 10 significant degradation of any particular element in the 11 environment is likely to occur, which is how federal defendants 12 believe that the plaintiffs set forth the standard in their 13 briefing, and we just want to obviously remind you of that. 14 The other issue that has continued to come up in the 15 briefing is the recurrent theme that this somehow is an 16 indicated FONSI again, where the Forest Service ostensibly 17 found that there would be a significant effect from the 18 mountain bike trails themselves, and therefore had to add these 19 restoration elements of the project to the mix in order to get 20 under a significance finding. 21 There's nothing in the record that supports that. 22 There's no finding of significance by the Forest Service. As 23 you may be aware, originally the Forest Service was examining 24 this particular project to see if it could address its NEPA 25 responsibilities under a categorical exclusion. We think, in Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 62 of 134 63 1 hindsight, in particular they wisely decided not to utilize 2 that particular measure here, and prepared a very thorough 3 environmental assessment instead, but we don't think that 4 additional step of having to move beyond the environmental 5 assessment and prepare an EIS, when we're talking about a 6 12-acre disturbance out of a 1400-acre special use permit area 7 and where the nearest occupied critical habitat is over a mile 8 away is in need of being prepared as well. 9 In this particular situation, even if the Court were 10 to find that this is a mitigated FONSI, as the plaintiffs 11 themselves concede, that is allowable within Ninth Circuit case 12 law. And, in particular, we point the Court to the Wetlands 13 Action Network case at 222 F.3d 1105, and the Friends of 14 Payette case at 988 F.2d 989. 15 In those particular cases, the Army Corps of 16 Engineers relied upon wetlands mitigation to find there was no 17 significant impact from the projects that they were 18 authorizing. The court said that because NEPA is a procedural 19 statute, because the Corps in that situation took a look at the 20 environmental effects, addressed the relevant factors, had 21 evidence to support their finding that the effects would not be 22 significant, and addressed the contrary opinions from the 23 plaintiffs that were brought forward to them for consideration, 24 that the court's inquiry was at an end, and as a result that 25 FONSI, that finding of no significant impact was not arbitrary Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 63 of 134 64 1 and capricious. 2 Federal defendants are of the view that this record 3 is replete with examples of how the Forest Service did the very 4 same thing here. In fact, in the hydrologic analysis that was 5 prepared for this environmental assessment, between the 6 preliminary assessment that was done and the final assessment 7 that was ultimately issued, the Forest Service hydrologist 8 actually reevaluated the effects, taking into account some of 9 the criticisms that had been leveled at his original analysis, 10 and trying to find a way to accommodate some of those concerns 11 more specifically, doing much more detailed analysis, expanding 12 the scope of potential effects and potential sedimentation. 13 And as a result of that, it simply cannot be denied that the 14 Forest Service addressed all of the substantive meaningful 15 criticisms that were levied at it. 16 Now at the end of day, of course, the plaintiffs' 17 expert still does not agree with the effects call that was made 18 by the Forest Service here, but again, mere disagreement among 19 experts does not render a decision arbitrary and capricious. 20 I'd also just add quickly on the mitigation issue, 21 Your Honor, the additional restoration elements of this project 22 were not added to this project -- obviously, they were not part 23 of the original request for the special use permit 24 authorization that Timberline was seeking here. They were 25 added at the behest of the Forest Service in part because again Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 64 of 134 65 1 there's this longstanding priority, particularly in the Zigzag 2 Ranger District, and in this particular watershed, to redress 3 sources of chronic sedimentation to protect the water supply in 4 that area effectively, but also in order to ensure compliance 5 with forest plan direction. 6 So Mr. Stiefel referred you earlier to WR-3, which, 7 of course, is one of the applicable standards and guidelines 8 here, and does say that environmental effects cannot be simply 9 offset by mitigation or planned restoration. However, here in 10 this situation, the Forest Service took affirmative action to 11 minimize and avoid impacts in the first instance, but they also 12 had other direction in the plan to comply with; in particular, 13 FW-84, FW-97-98, which requires that they not add to 14 sedimentation in particular watersheds. 15 So by implementing and including these restoration 16 elements to improve the sedimentation situation in these 17 subwatersheds, they were ensuring compliance with that forest 18 plan direction at the same time, not with respect to trying to 19 avoid a significant impact under NEPA, but with respect to 20 ensuring compliance with their policy direction and their 21 forest plan management direction, which is important. 22 There's been some discussion about the adequacy of 23 the sedimentation requirements and protective measures in the 24 project design criteria that the Forest Service added in this 25 particular project. I just want to point out that the Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 65 of 134 66 1 particular element of the project design criteria on which the 2 plaintiffs have focused, which would allow for suspension or 3 require a suspension of activities when there's greater than 4 1-inch precipitation is only one of the project design criteria 5 that applies that would allow for shutting down of operations 6 or construction. 7 The Forest Service effectively has five or six 8 different PDCs that apply that will allow them to go to RLK and 9 tell Timberline that it needs to cease operations because of 10 potential concerns with sedimentation. 11 So I think, again, this is a situation where the 12 plaintiffs would have the Court evaluate that particular 13 element of the project design criteria in isolation, when in 14 reality it's important to evaluate all of the project design 15 criteria, and best management practice as a whole, which 16 include qualitative and quantitative criteria to allow for the 17 Forest Service to respond to situations as they occur on the 18 ground. As we know, the weather systems on the mountain can be 19 hard to predict, and therefore the Forest Service reasonably 20 chose to give itself two different approaches here, one more 21 quantitative and the other more qualitative, based upon their 22 knowledge of the mountain and conditions as they unfold during 23 operations. 24 Moreover, the finding is not simply plucked out of 25 nowhere; that the project design criteria, best management Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 66 of 134 67 1 practices are going to be adequate to avoid significant 2 sedimentation on the mountain. The findings thoroughly 3 documented, based on the longstanding experience of over two 4 decades of working on this mountain by the forest hydrologist. 5 He prepared a paper at the Forest Service AR 26090 to 91, where 6 he lays out four or five different bases for his finding, 7 including monitoring and studies that he consulted, and his own 8 work on other environmental assessments in this same watershed 9 that used a similar best management practice or project design 10 criteria. 11 In fact, he cites to a study in 1994, which is one of 12 the last major ground-disturbing activities that occurred in 13 this particular watershed. It was a salvage timber sale that 14 had utilized similar protective measures to guard against 15 sedimentation. And in that particular salvage sale, there were 16 measurements that were made prior to the sale and during the 17 sale being harvested and after the sale, and there were no 18 meaningful differences beyond the natural range of variability 19 on turbidity or sedimentation in the affected streams. 20 That was a salvage timber sale, which had much 21 greater impacts on the ground than what this mountain bike park 22 will have, and therefore the Forest Service hydrologist, even 23 on that ground alone -- and, again, he had four or five other 24 different pillars on which he relied here -- would be 25 sufficient to support his finding that the project design Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 67 of 134 68 1 criteria are going to be adequate to avoid operating under 2 conditions that would lead to greater sedimentation than was 3 analyzed and projected. 4 So at the end of the day, again, as I alluded to 5 earlier, this really does come down to just a disagreement 6 among experts. 7 Plaintiffs do talk a little bit about the 8 overestimating the beneficial effects of the restoration, in 9 particular timing. We would argue that to a certain extent, 10 Your Honor, that's largely moot. The Forest Service has worked 11 with RLK to implement -- as you know, Your Honor, the parties 12 reached an accommodation in this litigation to allow 13 restoration to go forward. Those are all largely now 14 implemented. 15 THE COURT: That's one of the biggest issues sort of 16 hanging on here is why didn't you go get a supplemental NEPA 17 evaluation for the bumblebee? I mean, that's the big elephant 18 in the room. The fish issue is a closer call, but the -- 19 MR. ODELL: Well, Your Honor, there are two issues 20 there, if I may. 21 THE COURT: I know. Let's talk about them. 22 MR. ODELL: Let's talk about it. Okay. And this is 23 Mr. Martin's issue, but let me, if I just may take a crack at 24 this. 25 THE COURT: Nice lateral. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 68 of 134 69 1 MR. ODELL: I just hope I don't fumble it. 2 Let me add, if I may, two issues I was going to 3 quickly raise there. Certainly in terms of the available time, 4 the Forest Service could have -- 5 THE COURT: Could we just say look out the window 6 today? 7 MR. ODELL: Yes, right. So they had time to do it, 8 that is true enough, if that had been a finding that they had 9 made. 10 On the other hand, the reality is that we're in a 11 situation now, if I may, Your Honor, where with NEPA, 12 particularly where an agency, as the Forest Service has done in 13 this case, is trying to do the right thing, they worked 14 cooperatively to avoid a preliminary injunction, they deferred 15 going forward, or allowing RLK to go forward with the 16 implementation and the construction of these trails. And 17 meanwhile what we have is new information. The world doesn't 18 stop, obviously, while we eliminate these claims. So new 19 information continues to emerge, and every time any new study 20 comes out, any new species is identified, we're going to have 21 folks who, frankly, are opposed to the project jump up and 22 down, say, oh my gosh, you've got to supplement NEPA. Now, it 23 sounds like an easy enough thing to do, but it is quite 24 expensive and the agency does have limited resources. And so I 25 think it should be -- Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 69 of 134 70 1 THE COURT: I understand that. But I also understand 2 how much it takes to take this case up. 3 MR. ODELL: I understand that, yes. I think we both 4 understand each other on that. 5 So I just would ask, Your Honor, and I'm sure I can 6 count on this, that you just understand that the agency cannot 7 be in a situation where when every new piece of information 8 emerges -- and I think this is clear if you go back to the 9 Methow Valley case, which is, I think, the seminal case out of 10 the Supreme Court on this, where the Court said you can't have 11 NEPA become this endless do loop. 12 THE COURT: No, I understand. 13 MR. ODELL: There has to be -- I think what the 14 agency has tried to do -- not only Forest Service but the 15 Bureau of Land Management and some of the other management 16 agencies -- is find a way to deal with new information without 17 having to go back and redo NEPA every time some new piece of 18 information comes to light. 19 MR. MARTIN: Thank you, Your Honor. 20 You did mention that you had concerns about the 21 western bumblebee, so if there's an area of that analysis from 22 2013 on which you're stuck that I can help clear up, if I can 23 help with that. 24 THE COURT: You know, it's procedural, so I just -- I 25 am concerned about that. Again, I'd like this to move forward Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 70 of 134 71 1 one way or the other. If it's going to -- let's address it. 2 If I have to send you back to resolve some of this, that may 3 make some sense, but I just want to just hear your rationale 4 for why -- 5 MR. MARTIN: Well, a couple points, then, Your Honor. 6 I think, from our perspective, the process worked, 7 you know. The Forest Service was confronted with a situation 8 where this bee wasn't even listed. Right? It wasn't even 9 listed on the sensitive species list until after the decision 10 had already been reached in the first place. And the Forest 11 Service under its policy parameters had discretion to use the 12 older list. 13 THE COURT: But doesn't that mean that there's some 14 heightened -- when it reaches that level, there should be some 15 heightened scrutiny, at least a heightened look at that? 16 MR. MARTIN: Well, and our view is that it did take a 17 hard look in that information review, Your Honor, and it 18 carefully looked at the input it had gotten, you know, from the 19 Xerces Society -- those are the folks who know the western 20 bumblebee -- along with the Forest Service entomologist and 21 biologist. But it went on for several pages and listed out the 22 Xerces Society and explained why it -- what it was going to do 23 in response to each and every one of those points, the five 24 points that Xerces raised, and explained why it was altering 25 some of those recommendations from that group. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 71 of 134 72 1 So -- and again, Your Honor, there's nothing in the 2 record that Xerces came back again and said, well, wait a 3 minute, that doesn't work, we don't think that's valid. 4 Instead, what we do have is the people who know and care about 5 the bee weighed in. The public -- pardon me, the Forest 6 Service discussed it, made an evaluation and entered its 7 preliminary review, you know, given its concerns about that, 8 and adaptively managed this project, put in yet a further key 9 specifically named in the forage issue, the nesting issue and 10 the overwintering queens issue, and made a rational call that 11 gosh, in light of the fact that these bees are mostly out by 12 the parking lot, we don't believe this presents a seriously 13 different picture of environmental effects. 14 THE COURT: And these are the safeguards that you're 15 going to take, that list? 16 MR. MARTIN: Yes, that's right. And they're 17 required. They're not just recommended. 18 THE COURT: Just trying to make our record. 19 Anything else, Mr. Odell? 20 MR. ODELL: Okay. Thank you, Your Honor. 21 I will not belabor the point on the potential 22 significant effects that the plaintiffs have alleged with 23 respect to the Lower Columbia River steelhead because I think 24 Mr. Martin has adequately covered that issue to this point in 25 discussing why the effects relating to the biological opinion Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 72 of 134 73 1 were not significant enough or did not require supplementation 2 under NEPA. So I'll move on from there, with your permission, 3 to the NMFA claims. 4 Now, Mr. Stiefel indicated that it's irrelevant that 5 the Court owes deference to the Forest Service's interpretation 6 of its plan guidance, and that the review here is arbitrary and 7 capricious. Our position, of course, is that those are highly 8 relevant because these particular provisions that the 9 plaintiffs are alleging that the Forest Service violated here 10 are the Forest Service's own planning directions, and therefore 11 it's critical that the Forest Service be granted deference on 12 its interpretation. 13 I'll just quickly touch on the first couple of LMP 14 provisions that the plaintiffs allege the Forest Service has 15 violated here before turning to the provision on which the 16 plaintiffs' counsel has spent most of his time this morning -- 17 or this afternoon, I'm sorry, which is WR-3. 18 With respect to FW-84, which requires that the 19 sedimentation not be increased, the Forest Service again has 20 made a finding that this project, taken as a whole, 21 notwithstanding some short-term localized impacts in the local 22 vicinity, over time there will be a net benefit from this 23 project with respect to sedimentation. In fact, the tonnage 24 that is going to be reduced is fairly significant, and 25 particularly with respect to Still Creek, because of the roads Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 73 of 134 74 1 that are going to be addressed and decommissioned and restored, 2 and the sites that are going to be addressed. And that's 3 critical. 4 We think it's actually somewhat interesting the 5 plaintiffs did not object, of course, to this restoration work 6 going forward. So obviously they must believe that there's 7 some benefit to the environment from these restoration projects 8 themselves, and just disagree about what the level of that 9 benefit might be. 10 Now, in Fish and Wildlife 97 and 98, again, we have a 11 case that talks about even if you're in a situation where 12 you're not at the appropriate standard at the time of the 13 project, that the project will not continue to degrade but will 14 improve the situation -- again, which is again the finding we 15 have here from the Forest Service to which the Court owes 16 deference -- that there is a finding of compliance that is not 17 arbitrary and capricious. And that case is the LOWD v. Forest 18 Service case, 549 F.3d 1211. 19 Now, with respect to WR-3, which is, of course, the 20 provision that talks about how the Forest Service shall not 21 rely upon mitigation or restoration instead of avoidance and 22 minimization, frankly we are somewhat befuddled by this 23 particular argument because it ignores many of the facts in the 24 record about the extensive efforts that the Forest Service made 25 here to avoid minimizing impacts. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 74 of 134 75 1 The reality is that the Forest Service rerouted 2 trails to avoid riparian reserves. They deleted one trail 3 entirely. Again, when Timberline came in with its original 4 proposal, there were 12 trails -- 5 THE COURT: Now eight. 6 MR. ODELL: -- and 18 acres. The upper portion of 7 trail 7 was moved, segments of trails within important 8 drainages were moved, portions of trails were moved to avoid 9 seepage areas and wetland seep areas. 10 So the notion that somehow the Forest Service took 11 the proposal as originally submitted to them by Timberline and 12 said, oh, my gosh, there's going to be significant effects 13 here, so we're going to go and make you do some restoration 14 instead to offset that is not borne out by a complete 15 evaluation and understanding of the record. 16 Now, you can cherry pick out a phrase here and a 17 phrase there, which is what plaintiffs have done, which is what 18 is their job, but the role of the Court, with respect, is to 19 evaluate the record as a whole, and the record as a whole does 20 not support that whatsoever. The Forest Service did a very 21 conscientious and careful job of configuring these trails, 22 laying them out to minimize and avoid wherever possible the 23 impacts, and then added to the project these critical 24 components to it, the implementation of these restoration 25 projects as a way to improve the sedimentation regime in the Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 75 of 134 76 1 watersheds affected. 2 So, again, Your Honor, these restoration elements of 3 the project are additive not substitutionary. 4 All right. So I'm turning now to ESA claims. I will 5 start with the ACS consistency argument because that's the 6 argument that Mr. Stiefel spent the majority of his time 7 arguing about, and you indicated that you had some concerns 8 about as well. 9 So the case that Mr. Stiefel relies upon in the main 10 is Cascadia Wildlands Project v. Fish and Wildlife Service, 11 which is at 219 Fed. Supp. 2d 1142, out of this court. But we 12 think that that case should not be relied upon in this 13 particular situation for at least three reasons. 14 First, it's flatly inconsistent with the Ninth 15 Circuit case law, which of course is binding precedent. The 16 Ninth Circuit case law is the Pacific Coast Federation of 17 Fishermen's Association against NMFS, at 265 Fed. 3d 1028, 18 issued just a year before. 19 And then, again, with all respect to Judge Redden, 20 who issued the Cascadia Wildlands Project opinion, we believe 21 that he may have misread NFMA to say that in all situations the 22 consulting agency needed to address and evaluate consistency 23 with the Aquatic Conservation Strategy in rendering a 24 biological opinion. 25 The problem with that is in PCFFA, the Court said Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 76 of 134 77 1 that in that case, the assessment of consistency with the 2 Aquatic Conservation Strategy was required because the 3 consulting agency had based its no jeopardy finding at the 4 programmatic level on that and on a finding at a site-specific 5 level as well. Okay. 6 Here we have a different kind of programmatic 7 biological opinion. The programmatic biological opinion 8 evaluated the actions at a higher scale of resolution for 9 compliance with ACS, the Aquatic Conservation Strategy, but did 10 not purport to bind NMFS at the site-specific scale, in terms 11 of how it would need to evaluate for jeopardy under the 12 Endangered Species Act for a project like this. 13 In fact, this is important because the Ninth Circuit 14 in the PCFFA case that I cited explicitly holds that 15 alternative methods are available on which NMFS can rely to 16 arrive at a no jeopardy conclusion in the biological opinion. 17 And so we think, again, with respect to the Cascadia 18 Wildlands Project case, the Court failed to account for the 19 fact that while in the PCFFA case, where NMFS says, we're going 20 to reach a no jeopardy conclusion at the programmatic scale in 21 part on NMFS also finding a site-specific scale that the ACS is 22 complied with by the action agency, their agency has no choice. 23 In this case, though, where NMFS holds out discretion 24 to say we're going to evaluate for ACS consistency at the 25 programmatic level but leave it open to ourselves to evaluate, Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 77 of 134 78 1 using a different methodology, the site-specific scale is not 2 required. 3 And the Ninth Circuit explicitly allowed for the 4 alternative approach. It just said if you're going to say that 5 that's what you're relying upon, then you got to do it, but if 6 you're not relying upon that at the site-specific scale, you do 7 not have to. And that's the situation we find ourselves in 8 here. 9 So, again, in the Cascadia Wildlands Project case, 10 that opportunity, that option was not fully accounted for by 11 the court. 12 Secondly, it's important to remember in the Cascadia 13 Wildlands Project case that that's a tentative ruling. It was 14 in the context of a preliminary injunction. And so if you read 15 that, looking carefully, Judge Redden says there are serious 16 questions about X, Y and Z, about whether or not NMFS needs to 17 evaluate for consistency with the Aquatic Conservation 18 Strategy, for example, and does not render any kind of a final 19 determination on those questions. So it's not even persuasive 20 in this context either for that reason because it was in a 21 situation where he just said, well, I have enough here to issue 22 a PI, but he wasn't purporting to issue a final ruling on that. 23 I think that's also important. 24 And we also think that on page 1150 in that case, 25 that the judge also made it clear that his interpretation, at Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 78 of 134 79 1 least suggested interpretation of the programmatic biological 2 opinion in that case did require NMFS to evaluate consistency 3 with the Aquatic Conservation Strategy at the site-specific 4 scale. 5 So again, if it's predicated, if the biological 6 opinion at the programmatic scale is predicated on a finding of 7 NMFS to make it a site-specific scale with ACS consistency, 8 then you have to do it. If you leave it open and you don't, 9 that's the situation here. 10 The reason that's important, Your Honor, is because 11 of the case law about courts not imposing new procedures on 12 agencies that are not explicitly required by statute or 13 regulation. So this harks way back to the Vermont Yankee case 14 out of the Supreme Court in the '70s, and it's been more 15 recently reaffirmed by the en banc opinion in Lands Council, at 16 537 F.3d. And in those cases, the court was very clear to say 17 that just because a reviewing court may believe that a 18 particular process might be beneficial or might have been 19 advisable to undertake, if it's not specifically required by 20 statute or regulation or otherwise that the agency has bound 21 itself to follow, then the court should not and cannot impose 22 additional procedures. 23 And so in the Lands Council case, for example, the 24 court there found that the way in which the Forest Service 25 found for consistency with the Northwest Forest Plan had to be Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 79 of 134 80 1 deferred to, and the court couldn't say, well, you have to use 2 this particular kind of monitoring or that particular kind of 3 survey, and in particular it reversed itself from earlier cases 4 based on that finding that the court had overstepped its bounds 5 in putting on additional requirements on the agency. 6 There's also another case that we cited in our briefs 7 that we believe upholds the use of an approach such as the one 8 that NMFS took here, which is ONDA v. Tidwell. That's at 716 9 F.Supp. 2d 982, and the pinpoint cite for that is 1005. 10 Now, the court in that particular case didn't rule 11 for the Forest Service on all particular fronts, and found some 12 concerns, but it did uphold the use of a similar approach to 13 the one that's used here. In that case, even though it 14 denounced Judge Haggerty -- and that was in 2010, so much more 15 recent than the Cascadia Wildlands. We actually believe that 16 even within this court there's a difference or a split of 17 opinion. The way to reconcile it, of course, is to read Judge 18 Redden's opinion in Cascadia Wildlands as a TRO/PI, where he 19 obviously had not had the benefit of full briefing at that 20 particular point in time. 21 The Aquatic Conservation Strategy, just to kind to 22 put a bow on this, if I could, obviously is land management 23 direction that the Forest Service and BLM have adopted to 24 ensure against unduly adverse effects on aquatic systems within 25 the Northwest Forest Plan area. And so I think it's important Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 80 of 134 81 1 to remember that in the first instance, the responsibility to 2 ensure compliance with the ACS is on the action agency. It's 3 not on the consulting agency. The consulting agency has a 4 wholly different regime under which it is evaluating effects. 5 These consulting agencies are not designed primarily to ensure 6 or police that the action agency or the management agency is 7 following its direction. They are geared up for the express 8 purpose of protecting species listed under the Endangered 9 Species Act. And yes, there's overlap, but those are distinct 10 evaluative regimes, if I can put it that way, in the sense that 11 in one instance, and here NMFS is looking to see, okay, is this 12 project going to jeopardize or adversely modify critical 13 habitat or jeopardize the species at issue. 14 In the case of the Forest Service, it's much broader 15 than that in many respects because they're looking at trying to 16 protect the aquatics in the habitat and those riparian areas at 17 large. So they are distinct, and as a result, we believe 18 unless NMFS ties its own hands, which it cannot do it here, it 19 explicitly left itself open to evaluate jeopardy through other 20 means, which again in the PCFFA case out of the Ninth Circuit 21 allowed the consulting agency to do that. And we think the 22 Court should not impose that burden on NMFS to do that unless 23 it chooses to on its own. 24 I did want to just quickly address your question 25 about turbidity, Your Honor. That is addressed primarily in Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 81 of 134 82 1 the project design criterion identified as WS-16 on pages 27777 2 and 27778 of the Forest Service administrative record. And it 3 talks about monitoring for stream turbidity to evaluate effects 4 of the project, and if they exceed 10 -- and I'm probably going 5 to botch the pronunciation here -- nephelometric turbidity 6 units -- or NTUs -- for a period exceeding 30 minutes, 7 operations are to cease until a plan is developed, and then 8 operations are to cease immediately if turbidity is over 100 9 NTUs. 10 And NMFS explicitly -- 11 THE COURT: So start watching it at 10 and stop it 12 completely at 110? 13 MR. ODELL: At 100. 14 THE COURT: At 100? 15 MR. ODELL: Yes. That's -- yes. 16 And if it's over 100, operations may not resume until 17 a plan has been developed and approved to address the cause of 18 increased turbidity. 19 NMFS does talk about turbidity in the biological 20 opinion, but explicitly, of course, relies upon the Forest 21 Service's project design criteria in that one particular in 22 respect to turbidity. 23 And if I may see the biological opinion. 24 Excuse me, Your Honor. If I may have a moment. 25 Yes. If the Court will look at NMFS AR 775, the Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 82 of 134 83 1 turbidity monitoring thresholds are actually included as part 2 of the take surrogates. As the Court is familiar, when the 3 consulting agency is not able to ascertain with any degree of 4 precision how many actual individuals of a species will be 5 taken, the case law allows for NMFS to rely upon the 6 surrogates, as long as they're rationally based and 7 quantitative. 8 Here, similar turbidity monitoring requirements are 9 identified as the take surrogate No. 3 on that page in the NMFS 10 AR. 11 And as NMFS explains here, this is structured to 12 describe a proportional degree of incidental take associated 13 with fine sediment input to Still Creek. And the discussion 14 actually then continues on to NMFS AR 776. 15 So it's in not only the project design criteria for 16 the Forest Service as a way to monitor and evaluate and allow 17 for operations to be arrested if there's a problem with that, 18 but it's also part of the terms and conditions of the 19 biological opinion that NMFS adopted. 20 And I think because Mr. Stiefel did not address the 21 other two ESA claims in his opening, we will rely upon our 22 brief for those as well. 23 I'd just -- in passing, we believe those are most 24 appropriately considered to be flyspecking, flyspecking with 25 concerns related to very in-depth fine-tooth evaluations of the Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 83 of 134 84 1 way that the -- the way NMFS evaluated the effects, and in 2 those particular situations, deference is due the expert 3 agency, which here, of course, is the National Marine Fisheries 4 Service. 5 Unless you have any questions. 6 THE COURT: You trailed off. So you might want to 7 speak up for the court reporter. You trailed off. 8 MR. ODELL: So yes, we believe the expert agency is 9 National Marine Fisheries Service, and they are entitled to be 10 deferred to on these questions regarding whether or not the 11 mitigation measures are sufficiently certain and reliable, and 12 thus surrogates that they included in the terms and conditions 13 for habitat take. 14 Unless you have any other questions for me, that's it 15 from the federal defendants. 16 THE COURT: Thank you. 17 I was wondering if you're going to weigh in. Do you 18 want to add something? 19 MR. MAYNARD: Your Honor, with your permission, I was 20 going to take a few minutes -- 21 THE COURT: That's fine. 22 MR. MAYNARD: -- and give some perspectives of RLK, a 23 couple points that would be helpful and still allow 24 Mr. Stiefel -- 25 THE COURT: You were handing notes, so I thought Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 84 of 134 85 1 maybe you were just joining in and not going to argue. 2 MR. MAYNARD: So, again, I'm Bob Maynard, 3 representing RLK and Company, which has operated the Timberline 4 area for 60 areas, and very proud of our record of restoring, 5 maintaining and improving what is a historic recreation site, 6 and that's to serve all public users, including the plaintiff 7 groups, including mountain bikers, including skiers, of course, 8 and that's while protecting the quality of the national forest 9 resources and the ecosystem around it. 10 RLK wants to move forward with implementing the 11 project properly, in the right way, to better serve the 12 recreating public in Portland and the surrounding region, and 13 as a continued good steward of the Timberline area. Not only 14 is it the only lift-assisted mountain bike project in the area, 15 but one that works and is consistent with the direction for 16 Timberline Lodge and oriented toward families and so on, as 17 Mr. Odell alluded. 18 My note to the federal defendant counsel was to make 19 sure they covered the ACS consistency ESA points, so I won't 20 repeat that, or hopefully any points in my few minutes here. 21 But I want to emphasize that this project, from our 22 perspective, is a very reasonable effort to update and add to 23 the recreational opportunities for visitors at Timberline. It 24 is within that already developed ski lift and one area downhill 25 out of sight from the lodge. It's not a road or a Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 85 of 134 86 1 timber-cutting project. They used a road model, in terms of 2 some sediments effects, but these are bike trails. These are 3 recreational trails. They're not that wide. They're curving 4 under the trees. There's no real canopy disturbance and so on. 5 It's not a dramatic change in use at Timberline. 6 It's meant for summer as much as winter use. Since the lodge 7 was constructed, it was really only summer use starting out, 8 when you look at FDR's comments way back in the '30s. 9 Mountain biking is already a popular use there and 10 around the Timberline area on the Timberline to Town Trail down 11 to Government Camp, I guess, and otherwise. 12 The bike park could increase the visitation there by 13 about 20,000 people per year in summer-early fall season. 14 That's compared to about 2 million visitors a year now. That's 15 a small increment and in line with the other minor impacts, 16 from our perspective. 17 From our perspective, this simply isn't the kind of 18 project that calls for an EIS or any more NEPA, ESA, or NMFA 19 process -- excuse the acronyms -- than what's already been 20 completed by the agency. 21 And there's been abundant participation by not just 22 the Bark plaintiff groups but also a great many citizens who 23 have voiced their support for this project in comments in the 24 record, as we noted previously. 25 As evident, I just want to note the agencies have Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 86 of 134 87 1 already substantially delayed this project in response to 2 plaintiffs' arguments to better ensure that concerns about fish 3 and wildlife species are addressed. 4 Now, when it comes to the bumblebees and 5 supplementation, one thing I want to add, Mr. Odell mentioned 6 the Methow Valley case. That's a Supreme Court case about 7 supplementation. There's also Marsh v. ONRC, a Supreme Court 8 case that's in the briefs that talks about getting into this 9 endless do loop, an endless loop of always supplementing. If 10 you tie the agency's hands so that every time there is new 11 information and don't really apply the criteria regarding true 12 significance and you don't allow them to add some protective 13 measures in response to some input from activist groups after 14 the EA is out, and the specialists like Xerces Society, there's 15 a disincentive to add those kind of good measures, and the 16 process, from our perspective, doesn't work correctly and it 17 just adds a lot of delay. 18 So when looking at the new information report for the 19 bumblebee, as well as for the biological opinion, to us the 20 deference to the agency and the rule of reason that does apply 21 in NEPA is important in terms of making the process productive 22 and not just an endless stream of information, as Mr. Stiefel 23 said, so that the project never happens and the agency -- any 24 project proponent like RLK is just stuck in a process without 25 true environmentally protected results. That's my point there. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 87 of 134 88 1 In terms of consistency with other cases, these were 2 in the briefs, but I want to note that it would be completely 3 consistent to affirm this environmental assessment and finding 4 of no significant impact with other recent cases in this 5 district, in the Ninth Circuit. The Bark v. Northrop case that 6 was affirmed in the Ninth Circuit for initial decision was in 7 this court, affirmed in -- I'll use the acronyms -- EA and 8 FONSI, the Jazz thinning project on the Mt. Hood National 9 Forest. That was about 2000 acres with some temporary road 10 construction. 11 The -- it's consistent with the Oregon Wild v. Forest 12 Service case that was decided in May of 2015. That affirmed EA 13 and FONSI for a timber-harvesting project that had about 14 3,000 acres of tree cutting and ground disturbance and some 15 decommissioning of roads, about five miles, eight miles of 16 temporary roads. 17 And it's consistent with Oregon Wild v. BLM, the 18 March 2015 decision by this Court, which did vacate a FONSI, 19 but that was for a precedent-setting final administration 20 project which logged nearly 200 acres of 80- to 100-year-old 21 big trees, and most of which was habitat for an Endangered 22 Species Act-listed species, spotted owl, and as the agency 23 knows, it was a truly controversial experimental-type project. 24 So we don't think it's outside the box to go ahead 25 and look at the NEPA supplement, the new information reports, Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 88 of 134 89 1 the additional evaluation that NMFS did in its biological 2 opinion. Don't focus on the not likely to adversely affect 3 versus likely to adversely affect, but the lack of significance 4 of those effects that is consistent from the beginning of the 5 process to the end with the agencies that's in the record, in 6 terms of upholding this under NEPA and the other statutes that 7 apply. 8 Now I just want to kind of look at my notes and see 9 if there's a couple other points that I can be helpful on. 10 When it comes to a -- deciding on the narrowest 11 grounds possible, you've already stated it. I certainly 12 support the Court addressing each issue so the parties know 13 where they stand and not, you know, you got to go back to this 14 because we don't know about this other stuff. That to me is 15 not beneficial. 16 In terms of what Mr. Stiefel has suggested about 17 going back, taking a fresh look, coming up with some 18 alternative, there's not an alternative for RLK that is at some 19 other area or someplace else in the forest, and so that's a no 20 action alternative for this ski area, for this project. And we 21 feel very strongly that it works at this area, it belongs. 22 Your Honor has mentioned the mild weather and how more summer 23 activities have helped finances and the employment at each 24 area, but they also serve the public in terms of more 25 year-round recreation, and when the skiing may be decreasing. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 89 of 134 90 1 So that's an important point for RLK. 2 And we're not aware of tweaking or kind of 3 modifications to this design -- it's already gone through such 4 an arduous process -- that would make it even lighter on the 5 land or more acceptable to these plaintiffs' groups. So that's 6 our perspective on that. 7 Unless -- if the Court has questions that I can 8 specifically help with, please ask, but otherwise I won't spend 9 more time. 10 THE COURT: No. I understand the position your 11 taking and I understand that a lot of people are actually 12 using -- following the directions and the expectations of the 13 Congress in terms of maximizing what is put in place. So these 14 arguments in many respects are important arguments to have here 15 and to fully flesh out, and I understand the nuances of those. 16 I guess I'm going back to just try to clean up some 17 of the issues that were raised. And I want to thank you, and 18 maybe one of you can answer. 19 Tell me, the scale was 10 -- on turbidity, 10 to 100. 20 Where is that up against the measurement of what that 21 represents in these? What does 100 mean, what does 10 mean, 22 and where is that in the context of -- why is that the range? 23 MR. ODELL: Well, Your Honor, I can -- 24 THE COURT: What happens at 100? What does it look 25 like at 100, or why is that the threshold range? Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 90 of 134 91 1 MR. ODELL: I will -- 2 THE COURT: And where is that found in the record? 3 MR. ODELL: Right. I'm going to find out exactly 4 where that is in the record. I'm sure I can find that for Your 5 Honor. I don't have that at my fingerprints right now, but it 6 is based upon research that's been done and/or professional 7 expertise. 8 THE COURT: If you could just point me to that in the 9 record. 10 MR. ODELL: Yes, but I will find that in the record. 11 I don't have it. 12 MR. MAYNARD: Your Honor, if I might add quickly. 13 Those are threshold numbers, but there's adaptive management in 14 this project. It's in the decision notice to where the 15 agencies and RLK aren't limited to these numbers. It's not 16 like if it's at 99.5, we're going to keep going. 17 THE COURT: No, I expect that. That was a part of 18 one of the things I was going to go back on is all along I 19 appreciate all of the -- that these are best practices, you've 20 used evidence-based approaches, but, you know, those of us who 21 actually are out in the wilderness know that people are not 22 necessarily within the parameters of average, and there's some 23 very destructive uses. And so I'm going to count on that as 24 this moves forward that people are really seriously taking that 25 constraint about monitoring and adapting, so to speak, when Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 91 of 134 92 1 they need to in the event the uses exceed what the parameters 2 are in this particular process and plan. 3 MR. MAYNARD: Yes, Your Honor. We're not just 4 punting and relying on monitoring adaptation going forward. 5 Integral to the design and throughout this process, the project 6 is really loaded up with minimization measures. We're going 7 to -- both RLK and the agency are committed to daily monitoring 8 during the season and other monitoring that goes beyond any 9 kind of minimum requirement to keep -- to help assure that 10 things are effective and don't get out of hand. 11 THE COURT: And I say this with all due respect, but 12 I would be remiss if I didn't say that that's critical, because 13 these are all -- these are -- we are stewards of all these 14 resources for the next generation, so we have to take the time 15 and the energy and the effort to make sure that as we increase 16 the use in a different fashion or decrease it in one fashion 17 and increase it in another, that there are safeguards that 18 preserve it all as well. 19 MR. MAYNARD: I absolutely agree, Your Honor. That's 20 one reason I mentioned that RLK has been there a long time, and 21 it intends to continue to be a good steward. 22 MR. ODELL: If I could, Your Honor. I just have a 23 preliminary response that I could provide you now. With your 24 permission, if I could submit whatever else I might be able to 25 find as to turbidity after the hearing. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 92 of 134 93 1 THE COURT: The reason why I ask this question is I 2 went through a similar -- an entirely different case in another 3 part of the state where that issue became -- the high number 4 was important to know, the threshold and why, and to adjust 5 from there. So I'm just -- I'm just trying to flesh it out in 6 my own mind. 7 MR. ODELL: Right. My preliminary information is 8 that it's tied to water quality protection measures for the 9 Bull Run management area, as well as the 401, Section 401, the 10 water quality certification that the State of Oregon has to 11 provide under the Clean Water Act. An initial cite I did have 12 to the record is at Forest Service Second Supp., page 40122. 13 But, again, I will follow up with the agency and find 14 out if there's anything additional with respect to that. 15 THE COURT: That helps just in terms of where it's 16 located. 17 MR. ODELL: Yes, Your Honor. 18 THE COURT: Thank you. 19 MR. STIEFEL: If I may respond, Your Honor, to a 20 couple points here. Once again, Oliver Stiefel on behalf of 21 the plaintiffs. It's German and it's a little hard to 22 pronounce, I guess. 23 THE COURT: Stiefel is hard to pronounce? 24 MR. STIEFEL: Apparently. 25 MR. ODELL: My apologies. One up again. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 93 of 134 94 1 MR. STIEFEL: So there's a lot of points I'd like to 2 make here, but I really wanted to stay focused on the key 3 issues here. I think the first is the -- NMFS's duty to ensure 4 consistency with the ACS. And I think today defendants have 5 admitted on the record an ESA violation here. Mr. Odell said 6 that when NMFS tied its own hands to a specific procedure, it's 7 arbitrary for them to abandon that procedure. 8 Here the programmatic no jeopardy BiOp in 1998 that 9 applies to all site-specific projects on the Mt. Hood National 10 Forest contains reasonable and prudent measures and terms and 11 conditions that specifically require the agency to ensure that 12 site-specific projects are implemented consistent with the ACS. 13 So that's a violation here. 14 Indeed, in defendants' briefing, they point out to a 15 BiOp in the record where they say, well, that BiOp is an 16 example of where NMFS does bind itself to a certain procedure. 17 Well, the BiOp that they site in the record is that 1998 18 programmatic BiOp for LCR steelhead. 19 And I think it's important also to recognize -- and 20 this is alluded to in our brief but is fleshed out in a little 21 more detail in our 60-day notice letter. And I can get you the 22 cite, I don't have that right offhand, but kind of the history 23 that happened after the PCFFA trilogy, where the agencies went 24 back and tried to kind of reformat the required level of 25 analysis. And so NMFS here issued a new BiOp -- programmatic Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 94 of 134 95 1 biological opinion assessing implementation of forest plans 2 with the integration of the Aquatic Conservation Strategy. And 3 that BiOp was in 2004, and expressly replaced the 1998 BiOp. 4 But that biological opinion was vacated by a court in 5 the Western District of Washington. That means it does not 6 apply. That means that the 1998 biological opinion contains 7 the binding standards and guidelines with which NMFS must 8 comply here. And those standards and guidelines are in the 9 record at 8783-8805, binding terms and conditions and 10 reasonable and prudent measures that require NMFS to ensure 11 consistency with the ACS. I think that's the end of the story 12 there. 13 Now, with regard to the two turbidity measurement, I 14 think Your Honor is right to focus on the fact that there's 15 really no supportable basis for that measurement here on the 16 record. It's important, as Your Honor mentioned, to equate 17 those levels of turbidity with the level of environmental 18 effects. And I also think it's important, Your Honor, to look 19 at how turbidity measurements have been used in other 20 instances, where you start with a baseline, you start with your 21 control, and you use that control to measure the level of 22 impacts. 23 And in our briefing, we cite to the Oregon turbidity 24 rule, and I won't reprise that argument, but I'd like to use 25 another illustrative example, and that can be found in the Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 95 of 134 96 1 Forest Service's own planning documents for the Jeff Flood lift 2 construction. There, the agency used project design criteria, 3 used a metric that required suspension of activities based on 4 an increase in turbidity above background conditions. It's 5 that degree above the baseline that really matters here. 6 Specifically, that PDC -- and that can be found at 7 pages 8897 in the record -- "If dewatering of the lift tower 8 footings causes an increase in turbidity of 5 NTU above 9 background levels in any live stream 100 feet downstream of 10 project activities, project activity work will be suspended 11 until turbidity returns to background levels." 12 And I think that that's what's missing here. 13 Now, moving on, Your Honor, to the MDP issue. Just a 14 couple really quick points there, because I think the briefing 15 really provides a road map, and as Mr. Martin acknowledged, 16 there's a lot of briefing both from parties and from the amicus 17 on this issue. 18 Your Honor alluded to the fact that -- how important 19 it is for the agency to make an initial determination about the 20 highest and best use for the public's land. Plaintiffs' 21 position here is that the public should be involved in that 22 determination. And that's the critical step of the process 23 that gets missed here when only every site-specific project is 24 implemented. There's no evaluation at square one of the 25 cumulative impacts of Timberline's full footprint and of Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 96 of 134 97 1 potential alternative uses of that special use permit area. 2 Now, with regard to the -- 3 THE COURT: Well, I guess I have to ask this 4 question. So is it your assumption that even, I guess -- and 5 I'm probably really overstating it. So at the time that this 6 bigger design was put in place or the conceptual plan was 7 created, that -- it's obvious they've selected a specific part 8 of that plan to go forward on. And are you telling me that you 9 think that there's some basis on which that entire plan should 10 be looked at? 11 MR. STIEFEL: That's correct. And that's exactly 12 what happened for Mt. Hood Meadows. 13 THE COURT: So what triggers that? How is that final 14 action when it's not implemented? Can you tell me what's the 15 crux of that? 16 MR. STIEFEL: So our proposition there -- and I think 17 the briefing really gets into that, and so I don't want to 18 reprise the arguments, but we do think that acceptance -- the 19 Forest Service's acceptance of that MDP and amending RLK's SUP 20 is both the consummation of the agency's decision-making 21 process and is a situation from which legal rights or 22 obligations flow. So that, the Forest Service's acceptance and 23 amendment, constituted final agency action and so is subject to 24 judicial review. 25 THE COURT: How would the Forest Service ever have Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 97 of 134 98 1 the chance to -- these aren't final. These are just 2 aspirational plans that are not in the process of either being 3 fully studied or implemented, but it's an aspirational plan for 4 a broad possibility. How could that possibly be final action? 5 MR. STIEFEL: Well, I think that there are two steps 6 to the inquiry. The first looks at the Forest Service's 7 decision to integrate that MDP into the special use permit. 8 And plaintiffs' position was that integration is final agency 9 action. 10 And then the second step of the inquiry looks at 11 whether it was unreasonable for the Forest Service not to 12 prepare a NEPA analysis for that integration. And that I think 13 is where Your Honor is concerned with here. But the gravamen 14 of plaintiffs' claim here is that without programmatic review, 15 which would happen at that level, at that broader level, at the 16 master development plan level, consideration of cumulative 17 effects and a robust evaluation of alternatives escapes 18 meaningful review. Because what the Forest Service has 19 acknowledged -- 20 THE COURT: How does it do that if, as you -- don't 21 you think that if they've got an aspirational goal or plan, and 22 they could easily abandon two-thirds of that plan because it 23 doesn't pencil out economically or there's no interest, or 24 whatever the choices are, and so we waste a lot of money on a 25 plan that no one may ever implement, but the cumulative, as you Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 98 of 134 99 1 add the projects, isn't going to require that cumulative impact 2 at each stage as a stage is added. 3 MR. STIEFEL: But you never have the full suite of 4 cumulative effects reviewed at step one. And that's what's 5 missing if you just look incrementally. 6 THE COURT: How can you possibly anticipate that? 7 Isn't that -- 8 MR. STIEFEL: It requires a little bit more upfront 9 planning, and I think that that's -- that is really what the 10 Mt. Hood case signifies, is the importance of that upfront 11 planning, and that's consistent with NEPA's early review 12 requirements, that the agency should integrate the public at 13 that step one to really look at -- you don't need to look at 14 the site-specific impacts. You don't need to look at things 15 like how many culverts you'll use, how many stream crossings 16 there will be, how much sedimentation each specific project 17 will cause. Those are the site-specific impacts that will be 18 addressed at later stages of NEPA review. But if you don't 19 have the programmatic review of step one, there's no way where 20 you can look at the full footprint and look at alternative uses 21 within the Timberline SUP. 22 THE COURT: Because it could change? 23 MR. STIEFEL: They, of course, could change, but I 24 don't think that that undermines the importance of public 25 review at that integral programmatic step. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 99 of 134 100 1 THE COURT: I hear you. 2 MR. STIEFEL: Unless there's anything else there, 3 Your Honor, I'll move on to the supplemental NEPA issues. 4 THE COURT: Okay. 5 MR. STIEFEL: First with regard to the northwestern 6 bumblebee, plaintiffs' point here is that the integration of 7 project design criteria went beyond the allowable scope of the 8 SIR. And I think that that's clear from the Ninth Circuit 9 cases on the issue, making policy determinations that should be 10 made with the full suite of NEPA procedural protections. 11 If you look at the Forest Service's response to the 12 Xerces Society, you can really see the controversy and 13 uncertainty embedded in that process. When the Forest Service 14 is making policy determinations about why it chose not to adopt 15 Xerces' specific suggestions for when to conduct surveys, when 16 to close, you know, the construction and operation of the bike 17 trails in the event of finding nests, and with regard to the 18 width of nest buffers, Xerces says it's integral to include 19 buffers of 20 or 25 meters on all sides, otherwise there are 20 going to be significant risks to nesting habitat and 21 overwintering queens. 22 Now, the Forest Service says, well, that could 23 interfere with some other resource considerations, so we're 24 only going to do 15, 15 feet. 25 Those are exactly the type of determinations that Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 100 of 134 101 1 should be made during the NEPA process. 2 And I'd also just point out the fact that the agency 3 has known about this issue for two summers now. It is a little 4 curious that it hasn't gone out like it did with respect to the 5 caddisfly. And the caddisfly report is in the record. 6 Plaintiffs initially had a caddisfly claim in their original 7 complaint, and the Forest Service addressed that issue by going 8 out and undertaking a full survey for caddisflies. Plaintiffs 9 do appreciate that effort that the Forest Service took, and 10 it's a little curious that the agency refused to take that step 11 here with the bumblebee, when so many of these issues could be 12 resolved, so much of this uncertainty could be resolved about 13 where nests potentially are and how the project will affect the 14 species. 15 Now, with respect to the biological opinion, I think 16 it's important to keep this in context here. There's a lot 17 that's been made about impacts to only individuals, but I think 18 it's important to recognize that Section 9 of the Endangered 19 Species Act prohibits the take of any listed species. And so 20 the efforts to minimize impacts to individuals of the listed 21 species, you know, really doesn't hold any water here. 22 And also I would note the differences between the ESA 23 evaluation in the BiOp and the NEPA evaluation. The ESA 24 evaluation in the BiOp is looking at impacts across the species 25 range. That's a much more broad review, whereas the NEPA Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 101 of 134 102 1 analysis is looking at site-specific impacts, impacts to listed 2 species within the project area. 3 And here, where we have the Forest Service in its 4 original NEPA analysis saying no direct impacts to the species, 5 all impacts insignificant and discountable, and then NMFS going 6 back and saying, actually, the magnitude of impacts within the 7 project area are going to be so severe we have to issue an 8 incidental take statement. That's exactly why the Forest 9 Service needs to go back and supplement its NEPA analysis. 10 And I'll just close, Your Honor, with respect to the 11 NFMA claim and this attempt to kind of marginalize the specific 12 site-specific impacts. Of course you have the ONRC v. Goodman 13 case out of the Ninth Circuit recognizing that there is no 14 de minimus exceptions to the standards and guidelines of a 15 forest plan, and you also have the PCFFA Ninth Circuit case 16 saying that ACS consistency must be assessed at the 17 site-specific scale. 18 And just because this area is designated as A11, 19 winter recreation, that doesn't mean that standards and 20 guidelines don't apply. In fact, just the opposite is true. 21 Standards and guidelines are the overlay. And the standards 22 that are at issue here with respect to the Aquatic Conservation 23 Strategy are not a minimize and avoid standard. They are a 24 maintain and restore standard. And that was the finding that 25 the Forest Service never made. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 102 of 134 103 1 Indeed, when you look at the impacts from the 2 construction and operation of the bike facility, and I think 3 the fisheries biological assessment does this pretty clearly 4 with respect to impacts to each habitat element, with respect 5 to each habitat element from construction and operation, 6 there's going to be a significant adverse effect. But then the 7 agency said, well, look, we have these independent restoration 8 projects that are going to cause a net benefit. That's 9 substituting expected benefits of restoration for known habitat 10 degradation, and that's why this project violates WR-3 as a 11 matter of law. 12 That's all I have, Your Honor, unless there are any 13 further questions. Thank you very much. 14 THE COURT: I have to ask this, the difference 15 between the caddisfly and the bumblebee in the treatment. Can 16 somebody just answer that question for me? 17 MR. MARTIN: Well, Your Honor, it hasn't been briefed 18 at all. Our interpretation is the plaintiffs have dropped that 19 claim. But so I understand your questions, could you -- 20 THE COURT: Why did you study the caddisfly but you 21 didn't the bumblebee? 22 MR. MARTIN: Well, we would disagree. 23 THE COURT: The different levels of study. 24 MR. MARTIN: Well, I think what the Forest Service 25 did was, along with Xerces Society, was it went and looked and Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 103 of 134 104 1 identified not just where the bumblebees were at Timberline 2 Lodge, but also broke down the various threats to the species, 3 right, that is, commercial bee rearing, invasive plants, the 4 speed of threats, and applied those threats to the setting of 5 the Timberline Lodge, and pointed out that invasive species 6 isn't a concern, that really the concern of the identified 7 threats to the western bumblebee was habitat loss, right, and 8 it went through the analysis. 9 And I think, Your Honor, there's going to be surveys, 10 too. You know, the adaptive management the Forest Service 11 decided to do, it doesn't need to go through NEPA to do 12 adaptive management. It made clear, you're going to do surveys 13 before you do any construction, right, and you're going to do 14 surveys during construction, right, and people are going to get 15 trained on identifying these bees. 16 So, you know, you're correct that it hasn't been 17 eight years, but as far as this process is concerned, there's 18 going to be construction of these trails. They're not going to 19 be within X feet of bumblebee nests, and if there's -- there's 20 going to be a delay when the season starts and they're going to 21 go look for them very actively. 22 THE COURT: I understood all that. My issue is why 23 you took two different approaches with the bee and the 24 caddisfly. That question is just sitting out there. I had to 25 ask it. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 104 of 134 105 1 MR. MARTIN: Well, you know, Your Honor, just 2 standing here at the moment, it's the answer I provided. If I 3 can provide further response based on input from the Forest 4 Service, I'd be happy to provide you that information. 5 THE COURT: I didn't think it would be that hard of a 6 question. 7 MR. MARTIN: Right, right. 8 Your Honor, just briefly on the conceptual plan. I 9 think part of the problem with the plaintiffs' final argument 10 on that is that it doesn't take into the account that NEPA is 11 only triggered in the first place when there is an 12 irretrievable or irreversible commitment of federal resources. 13 So when you accept a letter, that's not authorizing anything. 14 That's not irreversibly committing any Forest Service resources 15 to these projects, nor are those future projects reasonably 16 foreseeable impacts to have to take into account. 17 And for what it's worth, Your Honor, nor have the 18 plaintiffs actually challenged the national policy of the U.S. 19 Forest Service regarding conceptual plans. Instead, they've 20 challenged in this particular instance failing to account for 21 the fact that the Forest Service was in line with its own 22 policy on a national level. 23 Your Honor, on the caddisfly, I'm informed that 24 surveys were planned and funded separate and outside of the 25 project prior to, I believe, the discovery of the western Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 105 of 134 106 1 bumblebee. So there was already grant writing and applications 2 and funding streams that had been sort of put in place for a 3 multiyear effort. I believe the caddisfly had been identified 4 on Mt. Hood before the western bumblebee had been identified. 5 And on the western bumblebee, Your Honor, Mr. Maynard 6 made, I think, an important point that you have to be concerned 7 about an endless do loop. If new information is always going 8 to trigger formal new NEPA, then you're going to have endless 9 process, right? 10 And what you have here, though, is you have folks who 11 care about the western bumblebee. Those folks interacted with 12 the Forest Service, the Forest Service hearing them out and 13 having its experts make a judgment call and making an adaptive 14 management judgment call about a project and rationally 15 explaining why it didn't believe reopening NEPA made sense and 16 what purpose would it really serve. The input has already been 17 considered, received, responded to. No concerns back from 18 Xerces. 19 And I'm going to let Mr. Odell take on the additional 20 points the plaintiffs made in their rebuttal, but we very much 21 dispute the plaintiffs' characterization that NMFS identified 22 any severe impacts on the Lower Columbia River steelhead in the 23 biological opinion. To the contrary, NMFS made it clear in its 24 conclusion that there was no impact on the species or on its 25 critical habitat. Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 106 of 134 107 1 And it would be a misinterpretation of Ninth Circuit 2 law, Your Honor, to equate take under the ESA with NEPA 3 significance. Two statutes, two different sets of terms of 4 art. 5 MR. ODELL: If I can just address quickly the other 6 points that Mr. Stiefel made in his rebuttal. 7 And I apologize for mispronouncing your name. It's 8 my first opportunity to address Mr. Stiefel, and so I 9 appreciate your forbearance on that. 10 With respect, there is no concession of a violation 11 by NMFS with respect to whether or not it needs to find 12 consistency with the Aquatic Conservation Strategy and the 13 programmatic biological opinion. It is certainly true that 14 there is a reference in the programmatic biological opinion of 15 the National Marine Fisheries Service that the Forest Service 16 will need to comply with the Aquatic Conservation Strategy. Of 17 course, it is the Forest Service's own land management plan and 18 direction, so of course it needs to comply with it. 19 What is missing from the statement from Mr. Stiefel 20 is that there's any indication in that programmatic biological 21 opinion that NMFS has to predicate any site-specific finding of 22 no jeopardy or no adverse modification of critical habitat at a 23 site-specific level on an independent finding at that scale of 24 consistency with the Aquatic Conservation Strategy. 25 And, in fact, we have an example of a biological Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 107 of 134 108 1 opinion in the administrative record that NMFS submitted at 2 NMFS AR 8816, where the agency did predicate its site-specific 3 conclusion on an evaluation of consistency with the Aquatic 4 Conservation Strategy to reach its own jeopardy conclusions. 5 So NMFS clearly has that within its tool kit and knows how to 6 utilize it. 7 I would also point out that this programmatic 8 biological opinion that Mr. Stiefel cites is obviously a NMFS 9 document. NMFS should be entitled to a wide berth of 10 discretion on how to interpret its own biological opinion. It 11 certainly reads that biological opinion, especially in light of 12 the options that are provided to it by the Ninth Circuit in the 13 PCFFA case to not tie its hands to construe that programmatic 14 biological opinion in a way that didn't tie its hands here. 15 And so in some situations it does rely upon its own 16 independent evaluation of ACS consistency to make a no jeopardy 17 finding at the site scale, and in other situations, like here, 18 it does not. 19 The question again, Your Honor, is did the National 20 Marine Fisheries Service violate any regulation of the 21 Endangered Species Act in coming to that no jeopardy 22 conclusion. Has it provided a rational sustained basis for 23 making that finding? And clearly it's a very in-depth 24 biological opinion. 25 In fact, the National Marine Fisheries Service here Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 108 of 134 109 1 should be given its due for coming back to the Forest Service 2 after the fact and saying, actually, we think our letter of 3 concurrence was not advisable under these circumstances, and we 4 realize that we misapplied our policy direction, and so 5 therefore we're going to undertake to complete a biological 6 opinion here. And so there's a very thorough analysis of 7 effects. 8 And as Mr. Martin was suggesting, the biological 9 opinion is very clear that the majority of habitat affected by 10 the proposed action is of marginal quality and is not 11 particularly important to LCR steelhead, and on it goes, and it 12 explains exactly why, in thorough analysis and detail in the 13 biological opinion. 14 And so the notion somehow that NMFS failed in its 15 obligation to evaluate the impacts of this project on the 16 listed species are not borne out by the record, and reliance on 17 some hypertechnical reading of the programmatic biological 18 opinion, which is NMFS's own document, should be resoundingly 19 rejected by the Court, with all respect. 20 NMFS decided that is not the course of action one 21 would take here. It did not in any way, shape, or form 22 renounce or otherwise fail to live up to its obligations under 23 the Endangered Species Act. This project will have minimal 24 effects on LCR steelhead. And so the notion that somehow a 25 biological opinion that finds no jeopardy and only a handful of Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 109 of 134 110 1 individuals are going to be affected we believe simply is not 2 credible. 3 On the turbidity issue, Mr. Stiefel wants to suggest 4 somehow that, again, the Court should read that particular 5 project design criteria in isolation. There are a host of 6 project design criteria, and they're designed to protect 7 against erosion, sedimentation and other effects to the 8 hydrological system in this particular area, to protect the 9 fish and the riparian areas that the fish rely upon. 10 I will just cite a few: soil, No. 8. Covering of 11 soil stockpiled areas or disturbed areas is required. 12 THE COURT: Can I just -- 13 MR. ODELL: Go ahead. 14 THE COURT: I don't know how many people listen in 15 the courtroom. You're reading into things that -- I think you 16 just might want to just answer my questions, and you're kind of 17 ramping up where I don't think you need to. Is that helpful? 18 MR. ODELL: Yes, it is helpful, Your Honor. 19 THE COURT: I understand the issues. I ask questions 20 for a reason, and I think you're -- I don't think you heard 21 what I was asking. But that's okay. 22 MR. ODELL: Okay. Well, I will try to respond 23 accordingly on the fly, if I may. 24 Just the point I'm trying to make is that there are a 25 host of those project design criteria that apply, and, in fact, Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 110 of 134 111 1 on the turbidity one in particular, it does specifically allow 2 for cessation of operations until those turbidity issues are 3 addressed. It's not as though there is no recourse that occurs 4 if those thresholds are triggered for whatever reason. 5 Finally, on the NFMA claim, Your Honor -- and this 6 goes across the board really to many of the arguments that the 7 plaintiffs have made here this afternoon. Again, there's an 8 unwillingness to acknowledge the fact that these particular 9 elements of the project, the restoration in combination with 10 the very carefully designed trail layout and project design 11 criteria of 113 pages here in the EA will provide for improved 12 conditions with respect to sedimentation. 13 And if the Court were to ignore the standard of 14 deferring to the agency to rely upon the opinions of its own 15 experts on these issues when we obviously did an exhaustive 16 amount of research and analysis to come to that conclusion, 17 then and only then could Your Honor, in our opinion, find that 18 these NMFA provisions of the Land and Resource Management Plan 19 are not complied with. 20 Here, however, where such deference is called for and 21 required, there's simply no basis for evaluating the project in 22 isolation without the consideration of the entire suite of 23 protective measures that it provides for. 24 And the notion somehow that these mitigation measures 25 or project design criteria are based on mere speculation flies Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 111 of 134 112 1 in the face of this record, which specifically delineates four 2 or five different bases on which they were predicated, 3 including research, monitoring, prior projects, and 4 professional expertise, which is not to be scoffed at, again, 5 when you have somebody who has worked on this mountain for over 6 20 years on hydrology and these particular issues, it is a 7 significant amount of institutional memory that should be 8 respected and adhered to. 9 Thank you, Your Honor. 10 THE COURT: Thank you all. I'll take this under 11 advisement. I appreciate everybody's argument and time this 12 afternoon and briefing. I've read anything. I have tried to 13 keep my questions sort of narrow and specific, but I appreciate 14 everyone's thoughts and comments, and I'll try to get something 15 out shortly and move things along. 16 All right. Take care. Have a good evening. 17 THE CLERK: This court is adjourned. 18 (Proceedings concluded.) 19 20 21 22 23 24 25 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 112 of 134 113 1 2 --o0o-- 3 4 I certify, by signing below, that the foregoing is a 5 correct transcript of the record of proceedings in the 6 above-entitled cause. A transcript without an original 7 signature or conformed signature is not certified. 8 9 /s/Bonita J. Shumway 1/11/2016 10 ________________________________ _________________ BONITA J. SHUMWAY, CSR, RMR, CRR DATE 11 Official Court Reporter 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 113 of 134 ' '30s [1] 86/8 '70s [1] 79/14 - --o0o [1] 113/2 / /s/Bonita [1] 113/9 0 0.2 [1] 38/8 1 1 percent [2] 36/19 37/5 1-inch [1] 66/4 1/11/2016 [1] 113/9 10 [5] 82/4 82/11 90/19 90/19 90/21 100 [8] 82/8 82/13 82/14 82/16 90/19 90/21 90/24 90/25 100 feet [1] 96/9 100 miles [1] 35/24 100-year-old [1] 88/20 1000 [2] 2/10 2/18 1005 [1] 80/9 102 [1] 36/11 1028 [2] 12/13 76/17 10881 [1] 46/18 10882 [1] 45/15 10914 [1] 47/7 11 [1] 16/16 110 [1] 82/12 1105 [1] 63/13 1111 [1] 2/14 113 [1] 111/11 1142 [2] 13/19 76/11 1150 [2] 15/4 78/24 12 [2] 40/16 75/4 12 acres [3] 36/18 40/21 52/5 12-acre [1] 63/6 1211 [1] 74/18 13 [1] 41/24 1311 [1] 22/3 1373 [1] 17/18 1400 acres [1] 36/15 1400-acre [2] 36/19 63/6 15 [2] 29/9 100/24 15 feet [1] 100/24 15,000 [1] 29/4 16 [1] 82/1 17 miles [4] 17/22 22/22 23/6 26/11 175 [1] 33/3 18 [1] 75/6 18 acres [1] 40/20 185 [1] 33/5 1930s [1] 39/8 1994 [2] 21/5 67/11 1998 [6] 12/18 15/13 94/8 94/17 95/3 95/6 2 2 acres [1] 37/3 2 miles [1] 42/17 2 million [1] 86/14 20 [3] 16/16 100/19 112/6 20,000 [1] 86/13 20,000 acres [1] 35/23 200 acres [1] 88/20 2000 [2] 13/20 88/9 2000s [1] 48/4 2002 [2] 13/19 14/2 2004 [1] 95/3 2006 [1] 60/13 2009 [3] 45/14 45/18 46/2 2010 [1] 80/14 2011 [4] 7/2 39/11 46/5 46/7 2012 [1] 45/11 2013 [4] 32/1 51/2 53/23 70/22 2014 [5] 45/7 53/25 54/12 56/7 57/25 2015 [3] 1/7 88/12 88/18 2016 [1] 113/9 219 [2] 13/18 76/11 22 [1] 16/15 222 [1] 63/13 24035 [1] 18/14 25 meters [1] 100/19 26 [1] 37/12 26090 [1] 67/5 265 [2] 12/12 76/17 27 [1] 11/19 27738 [1] 40/10 27766 [1] 41/23 27777 [1] 82/1 27778 [1] 82/2 28092 [1] 9/10 2d [3] 13/18 76/11 80/9 3 3,000 acres [1] 88/14 30 [1] 82/6 30,000-foot-view [1] 46/3 300 [2] 37/3 37/7 300 acres [1] 36/24 301 [1] 2/18 31 [2] 11/19 16/15 3164 [1] 11/5 326-8188 [1] 2/19 33 [1] 53/20 36 [1] 11/20 37 [1] 6/3 39 [1] 55/6 3:13-cv-00828-AA [2] 1/4 3/3 3d [1] 76/17 4 40 [2] 6/2 11/19 40 percent [1] 41/17 401 [2] 93/9 93/9 40122 [1] 93/12 402.16 [1] 54/13 41 [1] 53/20 417 [1] 2/5 42 [2] 50/15 55/5 4242 [1] 54/3 44 [5] 6/3 6/3 30/6 30/6 50/15 4500-foot [1] 24/10 47 [2] 30/6 30/7 5 50 [1] 54/13 500 [1] 2/14 503 [1] 2/19 53 [1] 54/3 537 [1] 79/16 549 [1] 74/18 6 6 inches [2] 40/25 42/19 6,000-foot [1] 24/10 60 [1] 85/4 60-day [1] 94/21 600 [1] 2/10 669 [1] 57/8 7 7,000 acres [1] 35/22 70 [2] 41/19 57/8 716 [1] 80/8 754 [1] 57/1 770 [2] 57/12 57/16 771 [1] 56/25 775 [1] 82/25 776 [1] 83/14 78 [1] 41/23 791 [1] 57/18 8 80 [1] 88/20 8188 [1] 2/19 83702 [1] 2/15 84 [2] 65/13 73/18 8777 [1] 12/21 8783-8805 [1] 95/9 8805 [1] 95/9 8816 [2] 12/22 108/2 886 [1] 51/8 8897 [1] 96/7 9 90 [1] 41/19 90 percent [1] 42/20 904 [1] 51/8 91 [1] 67/5 917 [1] 2/5 96 [1] 48/10 97 [1] 74/10 97204 [2] 2/11 2/18 97205 [1] 2/6 98 [2] 65/13 74/10 982 [1] 80/9 988 [1] 63/14 989 [1] 63/14 99.5 [1] 91/16 991 [1] 9/8 A A1 [2] 23/21 23/24 A11 [1] 102/18 AA [2] 1/4 3/3 abandon [4] 13/11 15/9 94/7 98/22 ability [1] 10/25 able [6] 29/12 39/17 52/1 58/14 83/3 92/24 about [88] 4/5 5/5 5/23 6/1 7/7 7/18 7/25 11/24 18/2 18/3 18/4 18/25 21/12 23/18 23/23 24/10 26/13 26/16 26/20 27/1 27/16 30/16 31/17 33/17 33/23 35/10 36/22 37/18 38/8 38/11 39/9 39/22 40/6 44/17 45/4 45/10 50/17 52/5 54/1 54/15 54/17 56/8 57/22 58/10 59/19 60/8 60/24 61/13 63/5 65/22 68/7 68/21 68/22 70/20 70/25 72/4 72/7 74/8 74/11 74/20 74/24 76/7 76/8 78/16 78/16 79/11 81/25 82/3 82/19 86/13 86/14 87/2 87/6 87/8 88/9 88/13 88/15 89/14 89/16 91/25 96/19 100/14 101/3 101/12 101/17 106/7 106/11 106/14 above [5] 28/15 96/4 96/5 96/8 113/6 above-entitled [1] 113/6 absolute [1] 43/4 absolutely [1] 92/19 abundant [1] 86/21 academic [2] 18/23 30/24 accept [1] 105/13 acceptable [3] 4/10 46/9 90/5 acceptance [9] 45/14 45/17 46/3 46/16 47/24 48/12 97/18 97/19 97/22 accepting [1] 45/22 access [1] 25/25 accommodate [1] 64/10 accommodation [2] 53/2 68/12 accordance [1] 32/12 accordingly [2] 10/12 110/23 account [11] 17/24 26/23 54/20 57/8 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 114 of 134 A account... [7] 59/16 60/17 64/8 77/18 105/10 105/16 105/20 accounted [2] 8/4 78/10 accrual [1] 10/20 accurate [1] 25/20 achieved [1] 11/9 acknowledge [2] 11/21 111/8 acknowledged [3] 8/20 96/15 98/19 acknowledgement [1] 9/1 acknowledgment [1] 15/15 acre [3] 36/19 63/6 63/6 acres [19] 26/16 35/20 35/22 35/23 36/15 36/15 36/18 36/24 37/3 38/8 40/20 40/21 40/23 48/10 52/5 75/6 88/9 88/14 88/20 acronyms [2] 86/19 88/7 across [6] 15/16 21/21 24/8 41/20 101/24 111/6 ACS [45] 11/18 12/6 12/15 12/16 12/17 13/5 13/9 14/1 14/5 14/9 14/15 14/15 14/21 15/7 15/20 15/22 16/8 16/18 16/20 17/4 17/7 17/10 17/11 19/20 20/21 21/21 21/22 21/23 21/25 24/4 26/14 26/21 27/17 76/5 77/9 77/21 77/24 79/7 81/2 85/19 94/4 94/12 95/11 102/16 108/16 ACSO [1] 17/24 act [11] 39/12 46/6 47/3 56/2 77/12 81/9 88/22 93/11 101/19 108/21 109/23 Act-listed [1] 88/22 Acting [1] 1/6 action [18] 8/1 10/2 14/9 38/25 44/17 46/25 63/13 65/10 77/22 81/2 81/6 89/20 97/14 97/23 98/4 98/9 109/10 109/20 actions [4] 13/4 18/18 21/24 77/8 actively [2] 52/2 104/21 activist [1] 87/13 activities [9] 14/21 17/1 22/1 29/2 66/3 67/12 89/23 96/3 96/10 activity [4] 10/20 22/4 22/6 96/10 actual [3] 9/5 52/18 83/4 actually [25] 4/17 6/12 8/2 8/17 9/18 13/15 22/22 23/6 33/12 39/25 49/5 50/13 54/24 55/11 56/13 64/8 74/4 80/15 83/1 83/14 90/11 91/21 102/6 105/18 109/2 adaptation [1] 92/4 adapting [1] 91/25 adaptive [6] 50/25 53/10 91/13 104/10 104/12 106/13 adaptively [2] 51/22 72/8 add [13] 4/3 33/12 62/18 64/20 65/13 69/2 84/18 85/22 87/5 87/12 87/15 91/12 99/1 added [8] 35/23 39/12 42/6 64/22 64/25 65/24 75/23 99/2 adding [2] 43/21 43/22 addition [10] 32/10 36/5 36/21 37/7 39/4 40/19 40/23 41/2 42/6 53/19 additional [13] 27/8 41/4 43/22 45/13 54/8 54/18 63/4 64/21 79/22 80/5 89/1 93/14 106/19 additive [1] 76/3 address [21] 5/10 21/12 27/12 27/19 28/4 34/3 34/16 34/19 34/20 49/23 60/25 61/12 61/23 62/24 71/1 76/22 81/24 82/17 83/20 107/5 107/8 addressed [11] 21/15 63/20 63/22 64/14 74/1 74/2 81/25 87/3 99/18 101/7 111/3 addressing [3] 34/9 44/25 89/12 adds [1] 87/17 adequacy [1] 65/22 adequate [2] 67/1 68/1 adequately [1] 72/24 adhered [1] 112/8 adjoining [2] 25/15 26/2 adjourned [1] 112/17 adjust [1] 93/4 administration [1] 88/19 administrative [7] 9/23 48/21 55/2 56/25 57/16 82/2 108/1 admitted [1] 94/5 adopt [1] 100/14 adopted [2] 80/23 83/19 adoption [1] 19/2 advanced [1] 38/1 advantage [1] 39/20 adverse [7] 9/18 10/23 21/7 55/18 80/24 103/6 107/22 adversely [11] 6/9 7/10 7/12 8/19 8/20 10/6 10/9 57/10 81/12 89/2 89/3 advisable [2] 79/19 109/3 advisement [2] 34/13 112/11 affect [14] 6/9 7/9 7/10 7/12 8/19 8/21 10/6 10/9 32/3 54/16 57/14 89/2 89/3 101/13 affected [9] 37/19 40/22 44/3 57/10 57/12 67/19 76/1 109/9 110/1 affecting [1] 9/3 affirm [1] 88/3 affirmative [1] 65/10 affirmed [4] 48/1 88/6 88/7 88/12 affirmed in [1] 88/7 after [18] 6/10 8/19 8/23 29/6 39/1 43/14 44/9 51/13 51/14 52/21 54/5 57/23 67/17 71/9 87/13 92/25 94/23 109/2 afternoon [8] 3/7 3/11 3/15 3/17 3/21 73/17 111/7 112/12 again [39] 3/24 18/22 38/13 41/20 43/12 44/16 44/16 47/22 50/14 52/3 59/21 62/16 64/18 64/25 66/11 67/23 68/4 70/25 72/1 72/2 73/19 74/10 74/14 74/14 75/3 76/2 76/19 77/17 78/9 79/5 81/20 85/2 93/13 93/20 93/25 108/19 110/4 111/7 112/4 against [11] 28/7 32/25 33/2 35/2 45/14 53/15 67/14 76/17 80/24 90/20 110/7 agencies [9] 27/15 60/8 70/16 79/12 81/5 86/25 89/5 91/15 94/23 agencies' [1] 7/7 agency [60] 7/11 9/3 10/8 14/7 14/8 14/10 15/12 17/4 17/13 17/23 18/14 27/24 28/20 29/3 29/7 31/22 31/24 32/20 32/24 33/14 44/19 45/9 46/24 53/7 69/12 69/24 70/6 70/14 76/22 77/3 77/22 77/22 79/20 80/5 81/2 81/3 81/3 81/6 81/6 81/21 83/3 84/3 84/8 86/20 87/20 87/23 88/22 92/7 93/13 94/11 96/2 96/19 97/23 98/8 99/12 101/2 101/10 103/7 108/2 111/14 agency's [3] 27/9 87/10 97/20 ago [1] 27/23 agree [3] 37/25 64/17 92/19 agreed [1] 14/13 agreement [1] 4/5 ahead [6] 4/12 4/21 4/22 21/3 88/24 110/13 aid [1] 47/6 AIKEN [1] 1/19 aims [1] 21/17 al [4] 1/3 1/7 3/3 3/4 all [70] 5/24 6/17 6/20 8/9 8/14 9/25 12/5 15/14 15/19 15/21 17/1 20/2 20/15 20/19 21/5 21/12 21/21 24/15 24/20 25/4 25/10 25/15 25/25 26/25 28/19 29/17 31/12 34/4 34/12 34/13 35/15 35/21 36/1 36/2 36/5 37/25 39/9 39/16 39/18 43/13 43/15 43/16 43/18 44/7 54/15 58/12 58/14 64/14 66/14 68/13 76/4 76/19 76/21 80/11 85/6 91/18 91/19 92/11 92/13 92/13 92/18 94/9 100/19 102/5 103/12 103/18 104/22 109/19 112/10 112/16 allege [1] 73/14 alleged [1] 72/22 allegedly [2] 32/10 33/13 alleging [1] 73/9 Alliance [1] 8/11 allocation [1] 4/6 allocations [1] 40/14 allow [11] 24/20 27/18 66/2 66/5 66/8 66/16 68/12 83/16 84/23 87/12 111/1 allowable [3] 32/22 63/11 100/7 allowed [8] 12/14 36/1 36/7 39/5 39/24 43/8 78/3 81/21 allowing [1] 69/15 allows [2] 26/2 83/5 alluded [5] 27/18 68/4 85/17 94/20 96/18 almost [2] 37/3 46/3 alone [1] 67/23 along [8] 5/8 6/5 38/18 58/14 71/20 91/18 103/25 112/15 already [14] 9/14 24/23 25/24 36/18 37/25 71/10 85/24 86/9 86/19 87/1 89/11 90/3 106/1 106/16 also [42] 2/21 4/12 5/17 9/17 23/9 25/8 27/11 27/18 27/25 29/6 37/9 40/8 42/18 46/8 51/20 52/14 57/2 57/8 57/10 57/13 59/18 60/4 64/20 65/4 65/11 70/1 77/21 78/23 78/24 78/25 80/6 83/18 86/22 87/7 89/24 94/19 95/18 101/2 101/22 102/15 104/2 108/7 altering [1] 71/24 alternative [7] 77/15 78/4 89/18 89/18 89/20 97/1 99/20 alternatives [1] 98/17 although [1] 55/19 altogether [1] 19/18 always [2] 87/9 106/7 am [2] 25/2 70/25 amend [1] 10/11 amending [1] 97/19 amendment [1] 97/23 amenities [1] 48/25 amicus [3] 26/6 49/22 96/16 among [3] 44/19 64/18 68/6 amount [10] 4/19 20/2 23/10 33/22 36/15 37/5 40/6 42/2 111/16 112/7 analysis [42] 6/5 6/16 6/19 6/23 6/24 6/25 7/4 7/9 8/3 8/11 8/13 8/18 9/3 9/19 9/25 10/6 10/10 10/12 11/24 16/3 18/5 31/13 31/23 44/10 54/22 56/8 58/16 59/24 60/7 64/4 64/9 64/11 70/21 94/25 98/12 102/1 102/4 102/9 104/8 109/6 109/12 111/16 analyze [1] 14/4 analyzed [3] 14/20 42/5 68/3 and/or [2] 33/4 91/6 anesthesia [1] 20/3 Angel [2] 2/21 3/19 ANN [1] 1/19 another [8] 13/17 14/2 40/11 44/14 80/6 92/17 93/2 95/25 answer [5] 26/22 90/18 103/16 105/2 110/16 anticipate [3] 20/5 20/13 99/6 any [58] 4/2 5/22 10/20 10/23 13/3 16/6 19/11 19/12 19/15 25/9 25/21 26/25 28/2 29/2 32/10 32/17 33/1 33/13 33/23 34/9 36/6 36/6 36/6 36/8 40/25 45/23 45/23 52/4 53/1 54/14 55/20 56/2 56/14 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 115 of 134 A any... [25] 61/14 61/23 62/8 62/10 69/19 69/20 78/18 83/3 84/5 84/14 85/20 86/18 87/23 92/8 96/9 101/19 101/21 103/12 104/13 105/14 106/22 107/20 107/21 108/20 109/21 any other [1] 25/21 anybody [2] 4/14 4/17 anything [7] 4/2 4/17 72/19 93/14 100/2 105/13 112/12 anywhere [4] 21/23 25/11 46/2 52/7 apologies [1] 93/25 apologize [1] 107/7 Apparently [1] 93/24 appeal [2] 9/23 10/1 Appeals [2] 48/1 50/16 APPEARANCES [1] 2/2 appears [1] 31/2 apples [1] 24/25 applicable [3] 13/5 62/6 65/7 application [1] 38/20 applications [1] 106/1 applied [1] 104/4 applies [3] 50/20 66/5 94/9 apply [7] 66/8 87/11 87/20 89/7 95/6 102/20 110/25 appreciate [9] 4/20 11/22 11/23 50/2 91/19 101/9 107/9 112/11 112/13 approach [12] 11/14 13/13 16/1 18/7 18/10 19/20 27/1 34/22 50/2 78/4 80/7 80/12 approaches [4] 50/17 66/20 91/20 104/23 appropriate [3] 44/8 49/23 74/12 appropriately [1] 83/24 approval [3] 9/4 39/2 45/23 approved [1] 82/17 approximately [5] 35/23 36/11 36/14 36/24 42/17 aquatic [30] 5/14 10/17 11/10 12/10 12/25 16/14 16/22 17/3 17/6 17/8 17/23 20/18 21/17 21/19 22/5 30/4 43/17 76/23 77/2 77/9 78/17 79/3 80/21 80/24 95/2 102/22 107/12 107/16 107/24 108/3 aquatics [6] 5/5 5/25 27/7 27/9 29/19 81/16 AR [8] 9/10 11/5 18/14 67/5 82/25 83/10 83/14 108/2 arbitrary [12] 6/21 15/9 16/1 31/14 47/2 58/18 62/7 63/25 64/19 73/6 74/17 94/7 arduous [1] 90/4 are [145] area [50] 18/19 21/12 22/6 23/17 24/19 24/20 30/13 36/14 36/19 36/23 37/4 37/6 37/11 37/15 38/21 39/7 39/11 40/2 40/4 40/15 42/25 43/10 44/6 44/9 46/5 47/16 47/23 48/10 50/12 52/16 57/4 63/6 65/4 70/21 80/25 85/4 85/13 85/14 85/24 86/10 89/19 89/20 89/21 89/24 93/9 97/1 102/2 102/7 102/18 110/8 areas [35] 16/23 16/25 21/13 22/2 23/8 23/13 23/13 23/14 23/14 23/19 23/22 24/9 24/12 25/7 25/22 26/5 26/8 31/11 33/6 35/21 36/2 36/12 36/13 37/8 39/15 39/20 41/19 46/8 75/9 75/9 81/16 85/4 110/9 110/11 110/11 aren't [5] 28/3 29/13 56/14 91/15 98/1 argue [4] 9/18 24/18 68/9 85/1 arguing [2] 13/11 76/7 argument [13] 1/17 3/2 5/2 9/20 14/7 44/25 45/4 74/23 76/5 76/6 95/24 105/9 112/11 arguments [9] 12/6 44/24 45/6 50/9 87/2 90/14 90/14 97/18 111/6 arisen [1] 27/13 Ark [1] 47/22 armoring [1] 41/15 Army [1] 63/15 around [3] 39/18 85/9 86/10 arrested [1] 83/17 arrive [1] 77/16 art [1] 107/4 as [143] ascertain [1] 83/3 aside [1] 36/12 ask [12] 25/2 25/20 34/23 40/9 61/8 70/5 90/8 93/1 97/3 103/14 104/25 110/19 asked [1] 37/17 asking [2] 26/20 110/21 aspect [1] 32/4 aspects [3] 47/16 49/8 56/9 aspirational [3] 98/2 98/3 98/21 assertion [1] 37/22 assertions [2] 58/14 58/15 asserts [1] 26/24 assess [2] 13/12 32/8 assessed [2] 12/18 102/16 assessing [3] 13/22 31/20 95/1 assessment [10] 18/14 43/16 63/3 63/5 64/5 64/6 64/6 77/1 88/3 103/3 assessments [1] 67/8 assisted [1] 85/14 associated [1] 83/12 Association [1] 76/17 assuming [4] 24/18 25/15 38/3 46/24 assumption [1] 97/4 assumptions [1] 18/25 assure [1] 92/9 at [172] attempt [2] 11/6 102/11 attention [2] 6/22 60/11 Attorney's [3] 2/10 3/18 3/20 augmented [2] 24/19 59/2 August [1] 45/7 August 2014 [1] 45/7 authorization [2] 28/25 64/24 authorize [1] 29/1 authorized [5] 8/19 8/23 27/13 27/23 44/10 authorizing [2] 63/18 105/13 availability [1] 33/17 available [4] 30/24 55/3 69/3 77/15 Ave [1] 2/18 Avenue [1] 2/10 average [3] 41/16 41/17 91/22 avoid [18] 37/1 39/19 41/19 41/20 43/20 49/24 51/23 52/4 65/11 65/19 67/1 68/1 69/14 74/25 75/2 75/8 75/22 102/23 avoidance [2] 41/4 74/21 avoided [1] 40/20 aware [3] 44/18 62/23 90/2 away [2] 37/12 63/8 B Bachelor [1] 49/15 back [33] 6/11 8/24 10/8 11/22 20/10 21/3 23/3 23/4 24/5 25/14 26/12 32/9 45/17 48/3 49/6 54/9 55/7 59/1 70/8 70/17 71/2 72/2 79/13 86/8 89/13 89/17 90/16 91/18 94/24 102/6 102/9 106/17 109/1 backdrop [1] 11/15 background [4] 16/20 96/4 96/9 96/11 backup [1] 20/5 bad [1] 20/14 balance [1] 53/3 banc [1] 79/15 band [2] 23/8 24/10 BARK [5] 1/3 3/3 3/8 86/22 88/5 barrier [2] 37/11 37/16 based [18] 8/24 9/4 12/23 22/20 29/22 31/7 34/8 37/1 66/21 67/3 77/3 80/4 83/6 91/6 91/20 96/3 105/3 111/25 baseline [4] 7/6 56/13 95/20 96/5 bases [2] 67/6 112/2 basically [1] 7/13 Basin [1] 28/2 basins [1] 41/18 basis [7] 9/22 13/13 31/6 95/15 97/9 108/22 111/21 be [153] bear [3] 50/16 59/10 60/4 became [1] 93/3 because [56] 7/18 10/4 10/7 12/14 14/12 16/1 17/13 18/20 20/5 20/13 20/16 20/19 21/1 24/17 24/19 25/8 28/20 29/13 30/3 30/23 31/4 31/23 34/13 36/17 37/15 38/5 49/7 49/11 54/18 55/18 58/2 59/3 60/18 63/18 63/19 64/25 66/9 72/23 73/8 73/25 74/23 76/5 77/2 77/13 78/20 79/10 79/17 81/15 83/20 89/14 92/12 96/14 98/18 98/22 99/22 102/18 become [1] 70/11 bee [7] 33/16 52/2 52/3 71/8 72/5 104/3 104/23 been [45] 4/19 5/1 10/22 11/9 16/3 16/6 16/17 24/13 25/16 27/1 31/2 36/21 39/6 42/4 42/12 42/12 49/11 49/12 49/21 52/14 52/15 58/8 58/14 59/3 59/4 59/22 64/9 65/22 69/8 71/10 79/14 79/18 82/17 86/19 86/21 91/6 92/20 95/19 101/17 103/17 104/16 106/2 106/3 106/4 106/16 bees [9] 51/14 51/25 52/4 52/8 52/10 52/12 52/14 72/11 104/15 before [10] 1/19 19/15 20/25 40/23 52/3 61/4 73/15 76/18 104/13 106/4 befuddled [1] 74/22 begin [4] 4/2 6/1 20/1 34/17 beginner [1] 38/14 beginners [1] 38/4 beginning [3] 3/5 58/9 89/4 behalf [3] 3/8 3/12 93/20 behest [1] 64/25 being [13] 4/16 12/24 13/25 15/21 26/11 29/13 29/17 39/18 52/1 56/16 63/8 67/17 98/2 belabor [1] 72/21 believe [28] 6/21 8/21 22/19 23/14 31/24 42/22 45/11 47/2 49/22 51/2 53/4 55/15 59/12 60/1 62/12 72/12 74/6 76/20 79/17 80/7 80/15 81/17 83/23 84/8 105/25 106/3 106/15 110/1 belongs [1] 89/21 below [2] 52/18 113/4 beneficial [4] 42/16 68/8 79/18 89/15 benefit [5] 73/22 74/7 74/9 80/19 103/8 benefits [6] 10/20 11/12 19/16 19/19 28/6 103/9 berth [1] 108/9 best [7] 20/9 20/9 66/15 66/25 67/9 91/19 96/20 better [3] 35/13 85/11 87/2 between [7] 7/3 10/20 41/18 60/9 64/5 101/22 103/15 beyond [6] 12/1 32/22 63/4 67/18 92/8 100/7 big [3] 60/9 68/17 88/21 bigger [2] 46/10 97/6 biggest [1] 68/15 bike [25] 17/20 18/14 22/17 23/6 26/12 36/1 36/16 36/20 37/24 38/1 38/2 38/15 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 116 of 134 B bike... [13] 41/3 45/12 47/10 47/20 49/15 52/19 62/18 67/21 85/14 86/2 86/12 100/16 103/2 bikers [1] 85/7 biking [4] 21/23 35/24 49/6 86/9 bill [1] 39/13 binary [2] 59/13 59/18 bind [2] 77/10 94/16 binding [3] 76/15 95/7 95/9 bio [1] 61/11 biological [61] 5/11 6/17 12/18 12/21 14/19 18/13 30/11 37/21 45/7 53/18 53/25 54/5 54/6 54/7 55/15 56/5 56/6 56/18 57/23 57/24 58/1 58/2 59/12 59/23 60/5 60/14 60/23 61/17 61/19 72/25 76/24 77/7 77/7 77/16 79/1 79/5 82/19 82/23 83/19 87/19 89/1 95/1 95/4 95/6 101/15 103/3 106/23 107/13 107/14 107/20 107/25 108/8 108/10 108/11 108/14 108/24 109/5 109/8 109/13 109/17 109/25 biologist [2] 51/15 71/21 biologists [1] 30/16 BiOp [25] 6/23 7/4 7/10 7/22 9/11 12/4 12/18 12/25 13/12 13/21 14/3 54/12 59/7 59/11 61/18 94/8 94/15 94/15 94/17 94/18 94/25 95/3 95/3 101/23 101/24 BiOp's [1] 11/24 bit [4] 22/17 50/6 68/7 99/8 Black [1] 2/21 blank [1] 22/24 BLM [3] 29/24 80/23 88/17 block [1] 21/21 blocking [1] 56/16 blueprint [1] 21/23 board [1] 111/6 Bob [2] 3/22 85/2 bodies [1] 19/9 boils [1] 43/7 Boise [1] 2/15 Bonita [3] 2/17 113/9 113/10 born [1] 57/6 borne [2] 75/14 109/16 botch [1] 82/5 both [8] 8/12 16/25 33/9 55/3 70/3 92/7 96/16 97/20 bottom [2] 37/14 47/12 bound [1] 79/20 bounds [1] 80/4 bow [1] 80/22 box [1] 88/24 breast [1] 41/1 bridges [1] 41/15 brief [17] 4/7 4/13 5/4 11/4 16/16 16/20 27/3 33/25 35/12 39/7 45/17 53/20 55/5 55/6 62/1 83/22 94/20 briefed [9] 5/1 6/2 11/19 16/6 30/6 47/1 47/22 49/21 103/17 briefing [18] 5/23 6/20 26/6 33/25 38/10 50/14 53/4 53/21 60/11 62/13 62/15 80/19 94/14 95/23 96/14 96/16 97/17 112/12 briefly [5] 5/17 21/20 30/2 48/2 105/8 briefs [3] 80/6 87/8 88/2 bring [1] 58/19 broad [2] 98/4 101/25 broader [2] 81/14 98/15 broke [1] 104/2 brought [2] 7/25 63/23 buffers [2] 100/18 100/19 built [2] 25/9 39/23 bull [4] 13/23 14/20 36/7 93/9 bumblebee [27] 5/19 28/6 30/2 30/5 30/10 32/3 32/25 44/14 45/6 50/11 50/24 53/12 53/23 68/17 70/21 71/20 87/19 100/6 101/11 103/15 103/21 104/7 104/19 106/1 106/4 106/5 106/11 bumblebees [3] 52/22 87/4 104/1 burden [1] 81/22 Bureau [1] 70/15 business [1] 46/4 but [133] C caddisflies [1] 101/8 caddisfly [8] 101/5 101/5 101/6 103/15 103/20 104/24 105/23 106/3 call [12] 46/4 51/16 54/23 54/24 55/22 59/14 60/1 64/17 68/18 72/10 106/13 106/14 called [2] 60/15 111/20 calls [1] 86/18 came [3] 28/24 72/2 75/3 Camp [1] 86/11 can [52] 9/6 16/15 17/10 17/18 18/11 19/12 21/22 22/14 22/16 22/17 23/2 23/5 24/1 24/22 26/22 29/11 34/13 35/2 37/15 37/23 40/9 43/12 45/21 47/12 48/17 50/4 60/17 61/10 61/11 66/18 70/5 70/22 70/22 75/16 77/15 81/10 89/9 90/7 90/18 90/23 91/4 94/21 95/25 96/6 97/14 99/6 99/20 100/12 103/15 105/3 107/5 110/12 can't [5] 20/15 25/17 25/21 32/16 70/10 Canada [1] 41/4 cancel [1] 10/23 candidly [1] 54/21 cannot [6] 9/2 64/13 65/8 70/6 79/21 81/18 canopy [1] 86/4 capricious [8] 31/15 47/3 58/18 62/7 64/1 64/19 73/7 74/17 care [3] 72/4 106/11 112/16 careful [2] 37/1 75/21 carefully [4] 56/6 71/18 78/15 111/10 carried [1] 9/21 carrying [1] 14/24 Cascadia [12] 7/1 9/17 13/17 13/18 14/7 76/10 76/20 77/17 78/9 78/12 80/15 80/18 case [77] 1/4 3/3 4/19 5/1 6/25 7/2 8/6 8/7 8/12 8/12 8/13 8/21 9/8 9/23 12/7 12/12 13/17 13/17 13/20 14/7 14/7 19/5 27/5 27/21 29/24 30/3 32/19 38/4 40/12 43/6 45/10 48/5 53/8 57/24 60/12 63/11 63/13 63/14 69/13 70/2 70/9 70/9 74/11 74/17 74/18 76/9 76/12 76/15 76/16 77/1 77/14 77/18 77/19 77/23 78/9 78/13 78/24 79/2 79/11 79/13 79/23 80/6 80/10 80/13 81/14 81/20 83/5 87/6 87/6 87/8 88/5 88/12 93/2 99/10 102/13 102/15 108/13 cases [9] 8/8 8/9 8/10 63/15 79/16 80/3 88/1 88/4 100/9 catch [1] 41/12 categorical [1] 62/25 cause [7] 6/12 7/23 8/2 82/17 99/17 103/8 113/6 causes [1] 96/8 cease [3] 66/9 82/7 82/8 Center [3] 2/5 3/9 60/12 central [3] 9/3 27/16 31/25 certain [3] 68/9 84/11 94/16 certainly [6] 46/24 47/2 69/3 89/11 107/13 108/11 certification [1] 93/10 certified [1] 113/7 certify [1] 113/4 cessation [1] 111/2 cetera [1] 26/2 CFR [1] 54/13 chairlift [1] 39/21 challenged [2] 105/18 105/20 chance [2] 48/19 98/1 Chaney [1] 2/21 change [5] 33/12 33/14 86/5 99/22 99/23 changed [4] 8/1 30/12 48/9 54/20 changes [1] 12/20 changing [1] 32/21 channelized [1] 24/7 characteristics [1] 22/5 characterization [2] 48/6 106/21 charts [1] 3/25 Cheney [1] 3/13 cherry [1] 75/16 CHIEF [1] 1/20 choice [1] 77/22 choices [2] 31/17 98/24 chooses [2] 12/15 81/23 chose [4] 12/17 14/17 66/20 100/14 chosen [2] 15/23 24/19 Christopher [2] 2/4 3/11 chronic [3] 17/20 43/1 65/3 Circuit [21] 8/12 12/12 28/13 32/14 48/1 50/16 60/12 60/15 63/11 76/15 76/16 77/13 78/3 81/20 88/5 88/6 100/8 102/13 102/15 107/1 108/12 Circuit's [1] 13/14 circulatory [1] 20/24 circumstances [3] 54/8 58/20 109/3 cite [7] 8/13 17/18 80/9 93/11 94/22 95/23 110/10 cited [8] 8/9 9/22 26/7 26/7 55/3 55/4 77/14 80/6 cites [3] 18/12 67/11 108/8 citing [1] 54/12 citizens [1] 86/22 Civil [1] 3/3 claim [30] 5/10 5/13 5/18 5/18 5/21 5/22 6/2 6/2 6/4 10/4 11/15 11/18 12/8 16/15 28/11 28/19 28/21 30/2 30/3 30/5 49/23 50/10 61/7 61/21 61/24 98/14 101/6 102/11 103/19 111/5 claimed [1] 17/24 claims [21] 5/13 7/25 10/14 16/5 16/13 27/8 29/19 33/22 33/24 34/20 34/21 34/21 34/21 45/13 49/23 50/9 61/4 69/18 73/3 76/4 83/21 clean [2] 90/16 93/11 cleaning [1] 41/17 clear [16] 18/11 46/8 50/20 53/9 54/4 54/12 54/17 58/8 70/8 70/22 78/25 79/16 100/8 104/12 106/23 109/9 clearing [1] 21/13 clearly [3] 103/3 108/5 108/23 clients [1] 29/11 close [4] 52/7 52/12 100/16 102/10 closed [1] 35/24 closer [2] 11/23 68/18 closest [1] 37/9 Club [1] 3/10 Coast [1] 76/16 cocktail [1] 52/17 Coffin [1] 8/25 Coffin's [1] 7/2 Coie [1] 2/14 color [1] 23/17 Colorado [1] 47/21 Columbia [10] 5/7 6/8 28/8 37/9 54/1 57/2 58/10 59/25 72/23 106/22 combination [3] 30/9 57/4 111/9 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 117 of 134 C come [7] 26/12 27/22 28/15 43/12 62/14 68/5 111/16 comes [6] 21/11 24/5 69/20 70/18 87/4 89/10 coming [5] 22/12 41/12 89/17 108/21 109/1 comment [7] 29/3 31/19 50/13 58/5 58/6 58/6 60/6 comments [8] 4/2 10/1 29/4 32/13 58/25 86/8 86/23 112/14 commercial [1] 104/3 commitment [1] 105/12 committed [1] 92/7 committing [1] 105/14 COMPANY [3] 1/9 3/23 85/3 compared [2] 23/8 86/14 compatible [1] 46/14 complaint [1] 101/7 complete [2] 75/14 109/5 completed [1] 86/20 completely [4] 13/12 36/8 82/12 88/2 compliance [7] 5/14 65/4 65/17 65/20 74/16 77/9 81/2 complied [2] 77/22 111/19 comply [5] 17/11 65/12 95/8 107/16 107/18 component [2] 16/22 26/23 components [2] 24/22 75/24 computer [2] 3/21 45/16 con [1] 56/10 concede [1] 63/11 conceptual [12] 45/4 45/18 45/23 46/16 46/22 47/14 48/7 48/17 49/20 97/6 105/8 105/19 concern [6] 30/23 33/14 52/4 60/25 104/6 104/6 concerned [6] 54/22 55/7 70/25 98/13 104/17 106/6 concerns [10] 52/24 64/10 66/10 70/20 72/7 76/7 80/12 83/25 87/2 106/17 concession [1] 107/10 conclude [1] 8/1 concluded [12] 7/9 7/11 7/19 8/18 14/3 14/23 47/25 57/2 57/10 57/13 60/16 112/18 concludes [1] 9/10 concluding [1] 54/14 conclusion [12] 10/4 12/23 28/16 31/25 43/13 54/10 77/16 77/20 106/24 108/3 108/22 111/16 conclusions [5] 7/7 11/24 11/25 44/22 108/4 concrete [2] 46/17 48/15 concurrence [3] 54/23 55/8 109/3 condition [2] 13/7 14/18 conditions [13] 13/1 15/1 54/7 57/25 58/2 66/22 68/2 83/18 84/12 94/11 95/9 96/4 111/12 conduct [1] 100/15 conferred [1] 4/5 conferring [1] 4/18 configure [1] 43/19 configuring [1] 75/21 confirms [1] 19/1 conformed [1] 113/7 confronted [1] 71/7 Congress [6] 32/19 39/12 39/25 46/7 49/8 90/13 congressional [1] 25/6 conjunction [1] 41/2 conscientious [1] 75/21 Conservation [22] 5/14 10/17 11/10 12/11 12/25 16/14 17/3 20/18 21/17 22/5 76/23 77/2 77/9 78/17 79/3 80/21 95/2 102/22 107/12 107/16 107/24 108/4 considerable [1] 33/22 consideration [4] 39/1 63/23 98/16 111/22 considerations [2] 33/1 100/23 considered [9] 6/16 9/19 13/16 30/19 31/13 54/17 58/15 83/24 106/17 considering [1] 28/15 consistency [36] 12/6 12/15 12/16 12/17 13/9 13/16 14/4 14/9 14/15 14/16 14/17 15/7 15/8 15/14 15/23 15/24 16/8 17/24 32/1 76/5 76/22 77/1 77/24 78/17 79/2 79/7 79/25 85/19 88/1 94/4 95/11 102/16 107/12 107/24 108/3 108/16 consistent [22] 4/11 11/18 12/10 12/24 13/5 14/1 15/19 16/18 17/2 17/12 25/6 26/14 26/21 27/17 43/13 85/15 88/3 88/11 88/17 89/4 94/12 99/11 consolidate [1] 5/2 constant [1] 27/22 constituent [3] 56/19 56/23 57/1 constituted [1] 97/23 constraint [1] 91/25 constructed [1] 86/7 construction [17] 9/12 17/21 18/15 51/23 52/1 52/2 52/3 66/6 69/16 88/10 96/2 100/16 103/2 103/5 104/13 104/14 104/18 construe [1] 108/13 consultation [3] 8/14 12/9 14/25 consultations [1] 15/15 consulted [1] 67/7 consulting [10] 10/8 14/8 41/3 76/22 77/3 81/3 81/3 81/5 81/21 83/3 consummation [2] 46/25 97/20 contains [2] 94/10 95/6 contemplated [3] 39/6 39/24 40/7 context [9] 10/15 35/7 40/5 47/6 60/2 78/14 78/20 90/22 101/16 context of [1] 90/22 contextual [1] 34/17 contextually [1] 38/13 contingent [1] 13/25 continue [4] 16/7 57/3 74/13 92/21 continued [2] 62/14 85/13 continues [2] 69/19 83/14 continuing [2] 10/24 15/17 continuity [1] 8/11 contour [1] 43/19 contrary [3] 54/21 63/22 106/23 contribute [1] 4/16 contributing [1] 42/18 control [2] 95/21 95/21 controlled [1] 12/11 controversial [1] 88/23 controversy [1] 100/12 convey [1] 45/23 cooperatively [1] 69/14 corner [1] 35/3 corporation [2] 1/3 1/10 Corps [2] 63/15 63/19 correct [5] 38/12 48/23 97/11 104/16 113/5 correctly [1] 87/16 corroborate [1] 30/25 could [31] 22/11 23/16 24/3 24/6 24/9 24/11 26/9 27/7 27/24 29/20 31/6 35/1 46/18 62/24 69/4 69/5 80/22 86/12 91/8 92/22 92/23 92/24 98/4 98/22 99/22 99/23 100/22 101/11 101/12 103/19 111/17 couldn't [1] 80/1 Council [4] 28/2 28/13 79/15 79/23 counsel [4] 3/5 3/19 73/16 85/18 count [2] 70/6 91/23 couple [6] 71/5 73/13 84/23 89/9 93/20 96/14 course [20] 7/6 21/22 28/18 32/4 32/18 64/16 65/7 73/7 74/5 74/19 76/15 80/17 82/20 84/3 85/7 99/23 102/12 107/17 107/18 109/20 court [58] 1/1 1/20 2/17 5/2 9/20 12/14 13/15 14/13 27/5 27/6 28/18 29/18 29/23 35/8 44/20 47/21 47/25 48/1 48/22 50/16 63/9 63/12 63/18 66/12 70/10 70/10 73/5 74/15 75/18 76/11 76/25 77/18 78/11 79/14 79/16 79/17 79/21 79/24 80/1 80/4 80/10 80/16 81/22 82/25 83/2 84/7 87/6 87/7 88/7 88/18 89/12 90/7 95/4 109/19 110/4 111/13 112/17 113/11 court's [4] 6/22 30/1 62/7 63/24 Courthouse [1] 2/17 courtroom [1] 110/15 courts [5] 29/21 46/9 60/5 62/4 79/11 covered [3] 6/17 72/24 85/19 Covering [1] 110/10 crack [1] 68/23 Crag [1] 2/5 created [3] 15/7 21/6 97/7 credible [1] 110/2 Creek [4] 18/16 44/3 73/25 83/13 criteria [23] 32/10 33/13 41/24 58/4 65/24 66/1 66/4 66/13 66/15 66/16 66/25 67/10 68/1 82/21 83/15 87/11 96/2 100/7 110/5 110/6 110/25 111/11 111/25 criterion [1] 82/1 critical [19] 15/18 28/4 30/5 31/9 32/4 33/18 37/13 51/6 56/15 59/10 63/7 73/11 74/3 75/23 81/12 92/12 96/22 106/25 107/22 critically [2] 27/25 28/6 criticisms [2] 64/9 64/15 crossings [1] 99/15 CRR [2] 2/17 113/10 crux [1] 97/15 CSR [2] 2/17 113/10 culvert [1] 56/16 culverts [2] 41/15 99/15 cumulative [5] 96/25 98/16 98/25 99/1 99/4 cumulatively [1] 15/16 curious [3] 24/17 101/4 101/10 current [1] 31/6 currently [1] 42/17 curving [1] 86/3 cut [1] 8/25 cutting [3] 40/25 86/1 88/14 cv [2] 1/4 3/3 D daily [2] 41/18 92/7 damage [1] 7/24 damaging [1] 32/6 dark [2] 35/21 36/2 data [1] 43/18 DATE [1] 113/10 day [7] 45/22 45/25 47/19 49/18 64/16 68/4 94/21 de [2] 62/8 102/14 de minimus [1] 102/14 deal [1] 70/16 dealing [1] 43/1 decade [1] 42/14 decades [1] 67/4 December [2] 51/1 51/2 decide [2] 28/10 38/24 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 118 of 134 D decided [7] 6/12 38/6 56/3 63/1 88/12 104/11 109/20 decides [1] 48/14 deciding [1] 89/10 decision [31] 6/10 6/21 9/9 9/21 12/12 13/19 27/5 31/14 32/15 32/21 33/12 33/15 35/7 43/10 45/11 47/1 48/1 49/24 50/17 50/19 52/21 53/15 53/25 58/19 64/19 71/9 88/6 88/18 91/14 97/20 98/7 decision-making [2] 47/1 97/20 decisional [1] 50/11 decisions [3] 9/3 27/9 58/25 decline [3] 31/1 31/4 33/18 decommission [1] 42/16 decommissioned [1] 74/1 decommissioning [1] 88/15 decommissionings [1] 42/12 decrease [1] 92/16 decreasing [1] 89/25 dedicated [1] 39/8 deeply [1] 19/10 defendant [8] 1/11 2/13 3/23 14/14 14/15 14/16 16/2 85/18 defendant-intervenor [2] 1/11 3/23 defendants [26] 1/8 2/9 3/16 3/18 4/6 4/11 8/8 8/12 13/10 14/6 22/9 22/19 23/9 23/22 24/18 34/3 34/8 37/24 42/22 44/7 45/13 49/22 62/11 64/2 84/15 94/4 defendants' [5] 46/23 52/20 53/20 55/6 94/14 Defense [1] 3/9 defer [1] 44/21 deference [7] 18/2 73/5 73/11 74/16 84/2 87/20 111/20 deferred [3] 69/14 80/1 84/10 deferring [1] 111/14 definitely [1] 58/19 degradation [7] 11/13 17/17 18/8 19/21 24/13 62/10 103/10 degrade [2] 56/22 74/13 degraded [1] 9/14 degrading [3] 21/24 24/3 25/12 degree [7] 7/5 8/5 32/25 33/2 83/3 83/12 96/5 delay [3] 58/20 87/17 104/20 delayed [1] 87/1 deleted [1] 75/2 delineated [2] 23/20 40/1 delineates [1] 112/1 demonstrative [1] 22/10 denial [1] 9/23 denied [1] 64/13 Dennis [2] 2/21 3/13 denounced [1] 80/14 density [1] 30/24 depend [1] 56/24 dependent [2] 11/7 16/24 depicted [1] 35/12 depth [3] 44/9 83/25 108/23 describe [2] 23/16 83/12 design [26] 32/9 33/12 41/24 42/3 58/3 65/24 66/1 66/4 66/13 66/14 66/25 67/9 67/25 82/1 82/21 83/15 90/3 92/5 96/2 97/6 100/7 110/5 110/6 110/25 111/10 111/25 designated [6] 23/11 23/15 23/21 26/17 37/14 102/18 designation [4] 23/24 30/10 30/25 33/16 designations [1] 48/9 designed [5] 13/2 14/21 81/5 110/6 111/10 desired [1] 11/9 despite [1] 13/10 destructive [1] 91/23 detail [2] 94/21 109/12 detailed [3] 54/18 56/8 64/11 determination [14] 7/17 7/19 8/15 8/17 9/10 9/21 13/16 13/24 15/18 32/15 46/7 78/19 96/19 96/22 determinations [4] 32/21 100/9 100/14 100/25 determine [2] 14/15 54/5 determined [1] 15/2 determines [1] 10/8 detriments [1] 28/7 develop [1] 28/5 developed [10] 16/21 18/18 26/5 26/11 36/6 48/10 50/12 82/7 82/17 85/24 developing [1] 32/20 development [15] 5/21 28/23 28/25 33/24 36/6 39/20 45/15 46/22 47/6 47/8 47/23 48/3 48/6 48/8 98/16 development: [1] 21/13 development: old [1] 21/13 developments [2] 46/8 53/24 develops [1] 41/3 dewatering [1] 96/7 diameter [1] 40/25 did [29] 14/4 22/25 29/23 29/24 39/3 47/25 51/13 62/1 64/3 70/20 71/16 73/1 74/5 75/20 77/9 79/2 80/12 81/24 83/20 88/18 89/1 93/11 101/4 103/20 103/25 108/2 108/19 109/21 111/15 didn't [13] 7/13 29/1 45/23 53/10 59/15 61/23 68/16 80/10 92/12 103/21 105/5 106/15 108/14 difference [4] 7/7 60/9 80/16 103/14 differences [3] 7/3 67/18 101/22 different [29] 6/24 8/4 15/22 28/16 34/9 47/9 50/5 50/22 51/3 53/11 56/10 57/19 57/21 58/20 62/3 66/8 66/20 67/6 67/24 72/13 77/6 78/1 81/4 92/16 93/2 103/23 104/23 107/3 112/2 different picture [1] 53/11 difficult [2] 19/6 19/16 difficulties [1] 39/15 dips [1] 41/14 direct [4] 7/20 7/23 10/3 102/4 directed [1] 52/2 direction [14] 25/6 27/15 33/3 49/7 65/5 65/12 65/18 65/20 65/21 80/23 81/7 85/15 107/18 109/4 directions [3] 43/14 73/10 90/12 directive [2] 25/18 25/24 directly [3] 7/2 8/7 10/18 dirt [1] 41/10 disagree [2] 74/8 103/22 disagreement [5] 44/12 44/16 44/19 64/18 68/5 disagreement: [1] 43/7 disagreement: the [1] 43/7 disclose [1] 10/10 disclosed [7] 6/16 6/17 8/24 9/19 12/1 30/18 31/13 disclosure [2] 6/23 6/24 discountable [4] 6/7 10/3 10/7 102/5 discounted [1] 17/23 discovery [4] 30/12 50/11 52/22 105/25 discretion [5] 43/11 51/22 71/11 77/23 108/10 discuss [2] 11/16 14/4 discussed [7] 48/5 50/14 50/21 51/1 51/11 57/1 72/6 discussing [4] 5/9 16/17 23/13 72/25 discussion [8] 10/13 36/21 51/13 53/19 61/3 61/13 65/22 83/13 disincentive [1] 87/15 dispute [3] 18/22 62/6 106/21 disruption [1] 21/1 distance [1] 52/11 distinct [2] 81/9 81/17 distinction [1] 59/19 district [13] 1/1 1/2 1/20 2/17 7/1 8/6 36/3 42/14 47/21 47/25 65/2 88/5 95/5 disturbance [5] 32/2 52/5 63/6 86/4 88/14 disturbed [5] 36/16 36/20 40/22 41/11 110/11 disturbing [3] 21/6 29/2 67/12 divide [1] 34/8 dividends [1] 29/15 divvied [1] 45/3 DN [2] 9/11 10/1 do [57] 4/3 4/9 11/22 11/23 17/15 20/10 20/13 32/6 34/15 35/9 36/9 37/24 41/5 42/9 42/11 44/11 46/17 49/6 49/16 50/4 50/8 50/18 50/19 55/14 55/22 56/3 56/4 57/17 59/17 59/19 68/7 69/7 69/13 69/23 70/11 70/14 71/22 72/4 75/13 78/5 78/6 79/8 81/18 81/21 81/22 84/17 87/9 97/18 98/20 100/24 101/9 104/11 104/11 104/12 104/13 104/13 106/7 document [8] 45/18 47/5 47/24 47/24 51/6 55/4 108/9 109/18 documentation [1] 32/17 documented [2] 31/4 67/3 documents [2] 58/22 96/1 does [30] 17/13 21/22 21/23 22/8 31/24 35/2 38/24 38/25 55/23 60/25 61/1 64/17 64/19 65/8 68/5 69/24 75/19 78/18 82/19 87/20 90/21 90/21 90/24 94/16 95/5 98/20 103/3 108/15 108/18 111/1 doesn't [14] 19/22 52/6 52/25 59/20 61/14 69/17 71/13 72/3 87/16 98/23 101/21 102/19 104/11 105/10 doing [5] 46/11 50/3 54/18 59/11 64/11 don't [38] 4/14 20/12 20/20 24/7 34/9 34/12 34/23 34/25 37/4 46/22 47/2 59/12 59/14 60/8 63/3 69/1 72/3 72/12 79/8 87/11 87/12 88/24 89/2 89/14 91/5 91/11 92/10 94/22 97/17 98/20 99/13 99/14 99/18 99/24 102/20 110/14 110/17 110/20 done [11] 35/14 35/14 42/12 44/10 50/4 54/23 54/24 64/6 69/12 75/17 91/6 Doug [3] 2/21 3/19 40/9 down [14] 21/11 35/16 40/21 41/6 41/10 41/12 41/21 43/7 49/11 66/5 68/5 69/22 86/10 104/2 downhill [2] 52/18 85/24 downstream [5] 37/10 37/16 57/3 57/7 96/9 downward [1] 30/23 drafters [2] 11/1 21/4 drainage [1] 19/8 drainages [2] 24/8 75/8 dramatic [3] 31/1 33/17 86/5 drink [1] 52/17 dropped [1] 103/18 due [5] 17/21 44/7 84/2 92/11 109/1 during [9] 29/3 37/18 52/3 58/16 66/22 67/16 92/8 101/1 104/14 duties [3] 5/10 12/9 16/14 duty [4] 15/7 15/9 16/19 94/3 E EA [14] 9/21 9/25 28/15 28/16 41/23 42/5 58/3 60/13 60/17 61/17 87/14 88/7 88/12 111/11 each [10] 17/1 27/7 70/4 71/23 89/12 89/23 99/2 99/16 103/4 103/5 earlier [10] 34/18 37/18 42/1 43/20 44/1 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 119 of 134 E earlier... [5] 54/12 58/16 65/6 68/5 80/3 early [4] 48/3 58/25 86/13 99/11 easily [1] 98/22 easy [1] 69/23 ecological [1] 16/21 economic [1] 39/15 economically [1] 98/23 ecosystem [2] 21/19 85/9 ecosystems [5] 16/22 17/6 17/9 19/9 28/13 effect [3] 9/13 62/17 103/6 effective [3] 20/2 27/11 92/10 effectively [6] 10/23 32/21 37/11 41/7 65/4 66/7 effectiveness [3] 18/5 18/25 28/4 effects [50] 6/7 6/15 6/17 6/18 7/18 8/1 8/5 8/11 8/16 9/18 10/2 11/6 11/25 13/8 17/23 39/1 41/22 42/4 43/3 43/15 43/22 44/13 44/17 51/4 54/1 59/25 60/24 63/20 63/21 64/8 64/12 64/17 65/8 68/8 72/13 72/22 72/25 75/12 80/24 81/4 82/3 84/1 86/2 89/4 95/18 98/17 99/4 109/7 109/24 110/7 effort [4] 85/22 92/15 101/9 106/3 efforts [2] 74/24 101/20 eight [4] 40/18 75/5 88/15 104/17 EIS [10] 5/21 28/10 28/11 28/17 33/24 42/9 61/22 62/5 63/5 86/18 either [5] 8/10 24/15 48/21 78/20 98/2 element [5] 62/10 66/1 66/13 103/4 103/5 elements [13] 24/14 24/15 42/7 42/24 43/23 56/20 56/23 57/1 62/19 64/21 65/16 76/2 111/9 elephant [1] 68/17 elevation [7] 17/22 22/16 23/8 24/10 31/3 31/9 33/18 elevations [1] 23/9 eliminate [1] 69/18 else [5] 25/11 72/19 89/19 92/24 100/2 embedded [1] 100/13 emerge [1] 69/19 emerges [1] 70/8 emphasis [1] 16/24 emphasize [1] 85/21 empirical [1] 18/24 employees [1] 39/17 employment [1] 89/23 en [1] 79/15 encapsulated [1] 21/14 encourage [1] 46/7 end [7] 21/3 56/15 63/24 64/16 68/4 89/5 95/11 endangered [8] 15/3 56/1 77/12 81/8 88/21 101/18 108/21 109/23 endless [6] 70/11 87/9 87/9 87/22 106/7 106/8 energy [1] 92/15 engage [1] 9/6 engaged [1] 59/3 Engineers [1] 63/16 Enhancement [1] 39/11 enjoy [1] 38/15 enough [6] 33/10 33/11 69/8 69/23 73/1 78/21 ensure [15] 11/17 12/10 13/4 13/9 14/8 15/8 43/3 65/4 80/24 81/2 81/5 87/2 94/3 94/11 95/10 ensuring [3] 21/18 65/17 65/20 entered [1] 72/6 entertained [1] 25/16 entire [4] 18/20 19/12 97/9 111/22 entirely [2] 75/3 93/2 entirety [1] 22/21 entitled [5] 44/19 58/11 84/9 108/9 113/6 entomologist [2] 51/15 71/20 environment [2] 62/11 74/7 environmental [20] 3/9 8/5 38/24 39/1 43/15 43/16 50/21 50/23 51/4 53/11 60/11 63/3 63/4 63/20 64/5 65/8 67/8 72/13 88/3 95/17 environmentally [1] 87/25 envisioned [1] 28/14 EPIC [1] 60/11 equal [1] 15/21 equate [3] 12/15 95/16 107/2 equated [2] 14/15 15/6 equation [1] 60/7 erodable [1] 24/11 erosion [4] 19/9 41/22 42/20 110/7 error [6] 15/10 50/20 53/9 54/4 58/21 58/22 ESA [23] 5/13 10/14 11/15 11/18 14/14 16/5 27/10 34/21 55/9 55/12 55/21 59/17 59/20 60/6 60/10 76/4 83/21 85/19 86/18 94/5 101/22 101/23 107/2 escape [2] 48/14 49/3 escapes [1] 98/17 especially [2] 43/17 108/11 essence [1] 33/8 essentially [1] 59/4 establishes [2] 13/7 50/25 et [5] 1/3 1/7 3/3 3/3 26/2 et cetera [1] 26/2 evaluate [14] 38/23 66/12 66/14 75/19 76/22 77/11 77/24 77/25 78/17 79/2 81/19 82/3 83/16 109/15 evaluated [3] 40/17 77/8 84/1 evaluating [4] 13/8 62/4 81/4 111/21 evaluation [11] 68/17 72/6 75/15 89/1 96/24 98/17 101/23 101/23 101/24 108/3 108/16 evaluations [1] 83/25 evaluative [1] 81/10 even [20] 7/20 18/4 19/18 24/11 35/13 42/24 54/12 55/10 56/18 58/4 63/9 67/22 71/8 71/8 74/11 78/19 80/13 80/16 90/4 97/4 evening [1] 112/16 event [2] 92/1 100/17 eventually [1] 40/17 ever [3] 53/1 97/25 98/25 every [10] 17/11 27/8 31/10 53/6 69/19 70/7 70/17 71/23 87/10 96/23 everybody's [1] 112/11 everyone's [1] 112/14 everything [2] 3/25 47/18 evidence [3] 18/24 63/21 91/20 evidence-based [1] 91/20 evident [1] 86/25 evolved [1] 17/9 exact [2] 14/6 15/5 exactly [11] 13/20 17/19 20/12 25/5 30/17 32/11 91/3 97/11 100/25 102/8 109/12 examining [3] 54/5 54/6 62/23 example [7] 48/16 49/10 78/18 79/23 94/16 95/25 107/25 examples [1] 64/3 exceed [2] 82/4 92/1 exceeding [1] 82/6 exceptions [1] 102/14 excluded [1] 22/1 exclusion [1] 62/25 excuse [2] 82/24 86/19 exercise [1] 15/11 exhaustive [1] 111/15 existent [1] 31/2 existing [10] 25/7 25/10 25/24 26/19 36/17 39/20 39/21 40/2 42/19 43/1 exists [1] 37/16 expanded [1] 26/9 expanding [1] 64/11 expect [3] 20/6 20/11 91/17 expectations [1] 90/12 expected [1] 103/9 expensive [1] 69/24 experience [1] 67/3 experienced [1] 31/1 experimental [2] 19/16 88/23 experimental-type [1] 88/23 expert [6] 7/11 15/11 32/13 64/17 84/2 84/8 expertise [2] 91/7 112/4 experts [7] 44/19 44/20 44/22 64/19 68/6 106/13 111/15 explained [3] 12/14 71/22 71/24 explaining [3] 31/8 61/12 106/15 explains [2] 83/11 109/12 explicitly [6] 77/14 78/3 79/12 81/19 82/10 82/20 express [3] 9/20 30/15 81/7 expressly [8] 9/20 12/23 13/4 15/23 19/20 20/16 32/14 95/3 extensive [3] 43/18 43/18 74/24 extensively [3] 47/1 58/12 62/1 extent [6] 5/22 22/7 43/5 43/21 54/16 68/9 extra [1] 59/6 extraordinary [1] 43/16 extremely [1] 40/6 F F.2d [1] 63/14 F.3d [4] 12/12 63/13 74/18 79/16 F.Supp [3] 13/18 57/18 80/9 face [2] 18/11 112/1 facilitate [1] 33/6 facility [3] 17/20 45/25 103/2 fact [25] 7/25 11/22 39/4 42/10 47/21 51/17 52/21 56/13 62/6 64/4 67/11 72/11 73/23 77/13 77/19 95/14 96/18 101/2 102/20 105/21 107/25 108/25 109/2 110/25 111/8 factor [1] 60/10 factors [2] 44/23 63/20 facts [4] 8/25 54/15 60/2 74/23 factual [2] 9/4 30/8 fail [1] 109/22 failed [4] 12/8 31/22 77/18 109/14 failing [2] 58/13 105/20 failure [1] 11/17 failures [1] 10/19 fair [1] 62/3 fairly [3] 16/4 62/1 73/24 fall [2] 41/20 86/13 familiar [2] 35/16 83/2 families [2] 38/14 85/16 family [2] 38/6 39/19 family-friendly [1] 38/6 far [4] 19/25 35/3 48/17 104/17 fashion [2] 92/16 92/16 favor [1] 20/22 FDR's [1] 86/8 feasibility [1] 46/4 feasible [1] 46/16 features [4] 19/8 25/24 41/5 41/19 Fed [2] 76/11 76/17 federal [17] 3/16 3/18 4/10 34/7 37/24 42/22 44/7 46/23 49/22 52/20 53/20 55/6 62/11 64/2 84/15 85/18 105/12 Federation [1] 76/16 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 120 of 134 F feel [2] 4/16 89/21 feels [1] 33/14 feet [3] 96/9 100/24 104/19 FEIS [1] 11/5 fell [1] 32/9 felt [1] 54/19 few [3] 37/19 84/20 85/20 few: [1] 110/10 few: soil [1] 110/10 figure [2] 20/10 37/4 final [13] 46/24 48/13 49/20 64/6 78/18 78/22 88/19 97/13 97/23 98/1 98/4 98/8 105/9 Finally [1] 111/5 finances [1] 89/23 find [15] 17/4 20/6 61/10 63/10 63/16 64/10 70/16 78/7 91/3 91/4 91/10 92/25 93/13 107/11 111/17 finding [32] 8/25 12/15 14/16 15/6 17/7 42/9 43/13 54/13 62/8 62/20 62/22 63/21 63/25 66/24 67/6 67/25 69/8 73/20 74/14 74/16 77/3 77/4 77/21 79/6 80/4 88/3 100/17 102/24 107/21 107/23 108/17 108/23 findings [3] 9/6 19/1 67/2 finds [1] 109/25 fine [8] 9/14 18/16 20/25 34/24 35/5 83/13 83/25 84/21 fine-tooth [1] 83/25 fingerprints [1] 91/5 fireplace [1] 52/17 firm [1] 41/3 first [26] 5/5 6/1 6/23 11/3 19/2 20/19 21/9 30/10 37/25 43/7 45/4 45/6 50/10 56/17 59/16 62/2 65/11 71/10 73/13 76/14 81/1 94/3 98/6 100/5 105/11 107/8 fish [11] 13/18 13/21 14/18 14/24 57/6 68/18 74/10 76/10 87/2 110/9 110/9 fisheries [10] 5/12 11/17 18/13 45/8 84/3 84/9 103/3 107/15 108/20 108/25 Fishermen's [1] 76/17 five [7] 51/11 66/7 67/6 67/23 71/23 88/15 112/2 flanks [3] 5/8 22/15 23/20 flatly [2] 18/20 76/14 flaws [1] 12/3 flesh [2] 90/15 93/5 fleshed [1] 94/20 flies [1] 111/25 flipped [2] 8/17 11/2 Flood [1] 96/1 flow [3] 10/19 41/12 97/22 FLPMA [1] 29/24 fly [1] 110/23 flyspecking [2] 83/24 83/24 focus [8] 5/5 5/16 6/22 12/6 25/5 49/14 89/2 95/14 focused [5] 30/3 51/10 51/19 66/2 94/2 focuses [2] 31/23 47/16 focusing [1] 23/17 folks [4] 69/21 71/19 106/10 106/11 follow [5] 19/17 53/1 53/6 79/21 93/13 follow-up [2] 19/17 53/1 following [4] 53/23 55/13 81/7 90/12 FONSI [7] 9/22 62/16 63/10 63/25 88/8 88/13 88/18 food [1] 26/1 foot [3] 24/10 24/10 46/3 footings [1] 96/8 footprint [7] 22/22 23/7 24/21 25/12 40/19 96/25 99/20 forage [1] 72/9 foraging [4] 31/24 32/2 51/18 51/19 forbearance [1] 107/9 forecasting [1] 48/25 foregoing [1] 113/4 foreseeable [1] 105/16 foreshadowed [1] 39/6 forest [219] forests [1] 10/21 forget [1] 60/8 Fork [2] 18/17 44/4 form [2] 15/11 109/21 formal [1] 106/8 formally [2] 51/4 53/15 formulations [1] 62/4 forth [1] 62/12 forward [14] 20/25 45/20 47/17 48/16 63/23 68/13 69/15 69/15 70/25 74/6 85/10 91/24 92/4 97/8 found [13] 7/22 13/16 16/15 17/18 21/5 44/9 62/17 79/24 79/25 80/11 91/2 95/25 96/6 four [7] 23/19 33/22 39/9 39/16 67/6 67/23 112/1 fragile [2] 24/9 25/18 framework [2] 34/6 44/24 frankly [6] 18/4 38/10 38/19 55/12 69/21 74/22 free [3] 13/11 15/21 15/25 Frequently [1] 11/5 fresh [6] 6/11 27/13 28/9 56/20 56/21 89/17 friendly [1] 38/6 Friends [5] 3/9 3/14 48/4 48/7 63/13 front [3] 20/16 23/2 29/15 fronts [2] 43/17 80/11 full [9] 28/10 30/19 30/19 80/19 96/25 99/3 99/20 100/10 101/8 fully [7] 13/4 16/6 28/22 29/11 78/10 90/15 98/3 fumble [1] 69/1 function [1] 21/19 functioning [3] 24/14 24/15 24/16 fundamental [4] 31/15 43/7 44/16 45/12 fundamentally [1] 11/13 funded [1] 105/24 funding [1] 106/2 further [9] 9/22 42/25 53/16 56/22 58/4 61/3 72/8 103/13 105/3 future [9] 12/24 13/25 15/6 15/14 46/13 48/14 48/18 49/4 105/15 FW [5] 33/3 33/5 65/13 65/13 73/18 FW-175 [1] 33/3 FW-185 [1] 33/5 FW-84 [2] 65/13 73/18 FW-97-98 [1] 65/13 G gave [1] 34/2 geared [1] 81/7 generated [2] 7/23 18/19 generation [1] 92/14 German [1] 93/21 get [17] 18/12 20/4 20/11 22/11 22/25 28/21 42/8 48/15 49/5 50/4 52/17 62/19 68/16 92/10 94/21 104/14 112/14 gets [3] 30/17 96/23 97/17 getting [1] 87/8 give [5] 16/9 40/5 61/14 66/20 84/22 given [10] 4/25 12/19 50/10 53/12 53/13 53/14 57/5 60/2 72/7 109/1 gives [2] 48/18 48/19 go [29] 4/22 5/20 11/25 20/8 20/12 20/25 25/14 38/3 41/20 42/3 48/21 49/4 49/6 52/16 66/8 68/13 68/16 69/15 70/8 70/17 75/13 88/24 89/13 91/18 97/8 102/9 104/11 104/21 110/13 goal [3] 17/4 17/7 98/21 goes [8] 6/20 10/8 19/25 32/22 37/17 92/8 109/11 111/6 going [97] 3/20 14/11 16/11 19/7 19/15 20/13 20/14 20/25 22/9 23/9 23/23 24/18 25/14 28/21 35/3 35/16 37/2 37/6 38/2 38/8 40/20 40/22 41/14 42/19 43/23 44/2 44/13 44/18 44/24 45/4 45/20 46/13 46/13 46/17 47/17 48/14 49/3 49/4 50/1 51/13 52/11 55/18 55/19 56/3 56/9 67/1 68/1 69/2 69/15 69/20 71/1 71/22 72/15 73/24 74/1 74/2 74/6 75/12 75/13 77/19 77/24 78/4 81/12 82/4 84/17 84/20 85/1 89/17 90/16 91/3 91/16 91/16 91/18 91/23 92/4 92/6 99/1 100/20 100/24 101/7 102/5 102/7 103/6 103/8 104/9 104/12 104/13 104/14 104/18 104/18 104/20 104/20 106/7 106/8 106/19 109/5 110/1 gone [4] 46/1 59/6 90/3 101/4 good [10] 3/7 3/11 3/15 3/17 4/18 34/14 85/13 87/15 92/21 112/16 Goodman [1] 102/12 goofed [1] 55/13 gosh [4] 55/14 69/22 72/11 75/12 got [10] 8/17 24/21 24/22 35/18 40/15 46/17 69/22 78/5 89/13 98/21 gotten [2] 49/16 71/18 governing [1] 16/18 Government [1] 86/11 grade [2] 41/5 41/6 grant [2] 39/2 106/1 granted [1] 73/11 graphs [1] 3/25 gravamen [1] 98/13 gravel [1] 42/20 great [1] 86/22 greater [3] 66/3 67/21 68/2 green [2] 35/21 36/2 ground [9] 21/7 29/2 43/19 52/5 66/18 67/12 67/21 67/23 88/14 ground-disturbing [2] 29/2 67/12 grounds [4] 27/6 27/14 29/20 89/11 group [2] 51/10 71/25 group's [1] 53/6 groups [4] 85/7 86/22 87/13 90/5 grueling [1] 43/3 guard [1] 67/14 guess [5] 86/11 90/16 93/22 97/3 97/4 guessed [1] 43/25 guidance [3] 27/15 28/21 73/6 guidances [1] 54/25 guidelines [8] 13/5 16/25 65/7 95/7 95/8 102/14 102/20 102/21 gullies [1] 41/21 H habitat [45] 5/8 9/14 11/2 11/13 17/17 17/23 18/8 19/21 20/19 20/22 21/6 21/9 21/9 21/10 21/24 22/16 22/23 23/7 24/3 24/13 24/14 24/15 30/13 31/25 32/2 32/2 33/3 33/18 37/13 56/15 57/11 57/14 63/7 81/13 81/16 84/13 88/21 100/20 103/4 103/5 103/9 104/7 106/25 107/22 109/9 habitat-degrading [2] 21/24 24/3 habitat-disturbing [1] 21/6 had [37] 10/22 13/20 15/2 21/5 21/6 34/18 51/12 54/19 54/24 58/2 59/3 62/18 63/20 64/9 65/12 67/14 67/20 67/23 69/7 69/8 69/8 70/20 71/10 71/11 71/18 76/7 77/3 79/25 80/4 80/19 80/19 88/13 101/6 104/24 106/2 106/3 106/4 hadn't [2] 54/17 54/20 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 121 of 134 H Haggerty [1] 80/14 half [1] 47/12 hand [5] 7/22 33/9 33/11 69/10 92/10 handbook [3] 55/1 55/2 55/20 handful [1] 109/25 handing [1] 84/25 handle [1] 34/13 hands [5] 81/18 87/10 94/6 108/13 108/14 hanging [1] 68/16 happen [3] 20/14 56/9 98/15 happened [3] 40/15 94/23 97/12 happens [2] 87/23 90/24 happy [4] 4/2 4/17 4/18 105/4 hard [10] 15/12 31/22 39/1 43/15 44/10 66/19 71/17 93/21 93/23 105/5 harks [1] 79/13 harm [2] 51/24 52/4 harms [3] 50/21 50/23 53/11 harvest [1] 14/21 harvested [1] 67/17 harvesting [1] 88/13 has [61] 4/14 5/22 9/5 11/9 13/15 15/7 15/23 17/23 18/10 20/3 27/13 27/21 27/22 29/15 30/11 31/1 32/6 32/14 33/23 36/9 37/20 38/6 38/21 38/23 39/2 39/6 39/25 41/16 42/11 44/20 49/15 53/7 55/11 59/4 62/14 66/7 68/10 69/12 70/13 70/14 72/24 73/14 73/16 73/19 77/22 79/20 81/3 82/17 85/3 89/16 89/22 90/7 92/20 93/10 98/18 101/3 106/16 107/21 108/5 108/22 112/5 hasn't [5] 49/11 49/12 101/4 103/17 104/16 have [137] haven't [3] 23/12 49/10 49/16 having [9] 27/7 39/15 39/19 41/20 41/21 51/14 63/4 70/17 106/13 he [10] 67/5 67/6 67/7 67/11 67/23 67/24 76/21 78/21 78/22 80/18 He's [1] 3/20 head [1] 55/24 heads [3] 16/2 16/4 16/9 heads-up [2] 16/2 16/4 headwater [2] 22/2 24/8 health [2] 16/21 21/18 healthier [1] 24/12 healthy [2] 17/6 21/10 hear [8] 4/2 4/16 4/17 4/18 34/12 50/4 71/3 100/1 heard [3] 51/8 52/23 110/20 hearing [2] 92/25 106/12 hearings [1] 4/15 heart [3] 9/1 12/7 18/12 height [1] 41/1 heightened [3] 71/14 71/15 71/15 Hello [1] 3/13 help [8] 3/20 35/7 35/9 39/19 70/22 70/23 90/8 92/9 helped [1] 89/23 helpful [5] 35/12 84/23 89/9 110/17 110/18 helps [1] 93/15 here [127] high [8] 15/16 17/22 21/2 22/16 31/3 31/9 33/18 93/3 high-elevation [5] 17/22 22/16 31/3 31/9 33/18 higher [1] 77/8 highest [2] 20/9 96/20 highlight [1] 61/25 highlights [1] 16/11 highly [2] 24/11 73/7 Highway [1] 37/11 hike [1] 35/13 hiking [1] 37/7 hill [3] 45/25 47/19 48/16 hindsight [1] 63/1 his [12] 37/22 48/6 61/24 64/9 67/6 67/7 67/25 73/16 76/6 78/25 83/21 107/6 historic [1] 85/5 history [2] 42/10 94/22 hold [3] 4/15 19/22 101/21 holders [1] 40/3 holds [2] 77/14 77/23 Honor [128] Honor's [1] 4/25 HONORABLE [1] 1/19 Hood [23] 1/7 3/9 3/14 5/8 22/15 22/21 23/20 23/21 24/12 28/23 29/7 29/9 31/5 35/22 48/2 48/4 48/8 49/19 88/8 94/9 97/12 99/10 106/4 Hood's [2] 12/19 26/17 hope [2] 49/19 69/1 hopefully [3] 40/5 44/23 85/20 hoping [1] 34/3 host [3] 7/4 110/5 110/25 house [1] 9/2 how [37] 4/1 4/3 4/9 20/11 21/15 21/24 27/16 27/21 31/18 34/7 38/15 50/17 50/18 52/12 57/17 57/21 62/11 64/3 70/2 74/20 77/11 83/4 89/22 95/19 96/18 97/13 97/25 98/4 98/20 99/6 99/15 99/15 99/16 101/13 108/5 108/10 110/14 however [5] 12/5 14/16 62/6 65/9 111/20 hugely [1] 44/4 human [1] 19/9 hydroelectric [1] 36/10 hydrologic [2] 43/17 64/4 hydrological [1] 110/8 hydrologist [3] 64/7 67/4 67/22 hydrology [1] 112/6 hyperlink [1] 55/4 hypertechnical [1] 109/17 I I'd [17] 4/7 5/1 5/4 5/5 6/22 10/13 11/16 27/3 27/6 50/3 64/20 70/25 83/23 94/1 95/24 101/2 105/4 I'll [25] 4/6 5/9 5/12 5/13 6/1 9/11 11/4 11/15 16/13 18/12 29/17 33/24 34/20 45/5 50/8 50/8 53/17 55/5 73/2 73/13 88/7 100/3 102/10 112/10 112/14 I'm [33] 3/15 4/2 4/17 4/17 14/11 24/17 24/18 25/14 25/15 28/21 34/3 35/16 44/24 45/4 49/25 50/1 50/3 50/6 70/5 73/17 76/4 82/4 85/2 90/16 91/3 91/4 91/23 93/5 93/5 97/5 105/23 106/19 110/24 I've [6] 16/3 33/21 35/14 35/14 59/22 112/12 ID [1] 2/15 Idaho [1] 32/18 idea [2] 19/23 48/18 identified [9] 12/4 69/20 82/1 83/9 104/1 104/6 106/3 106/4 106/21 identify [1] 52/1 identifying [1] 104/15 if [76] 4/14 22/4 22/11 22/17 27/4 28/18 30/17 32/17 33/14 35/1 35/3 38/25 46/18 48/14 48/15 49/3 49/5 52/10 55/15 55/17 55/20 56/2 62/24 63/9 68/20 68/23 69/2 69/8 69/11 70/8 70/21 70/22 71/1 71/2 74/11 78/4 78/5 78/14 79/5 79/5 79/8 79/19 80/22 81/10 82/4 82/8 82/16 82/23 82/24 82/25 83/17 84/17 87/9 89/9 90/7 91/8 91/12 91/16 92/12 92/22 92/24 93/14 93/19 96/7 98/20 98/21 99/5 99/18 100/11 104/19 105/2 106/7 107/5 110/23 111/4 111/13 ignore [3] 15/1 15/25 111/13 ignores [1] 74/23 illustrative [1] 95/25 immediately [1] 82/8 impact [16] 18/17 30/14 32/2 37/2 38/8 40/13 55/11 56/2 57/5 62/9 63/17 63/25 65/19 88/4 99/1 106/24 impacted [1] 37/6 impacts [65] 5/6 6/11 7/5 7/8 7/20 10/3 10/7 10/23 11/1 11/23 12/19 15/13 17/15 19/23 20/23 21/7 21/12 21/15 21/16 22/20 24/7 25/13 26/25 28/9 30/16 31/18 31/24 32/6 33/19 36/22 40/7 40/21 43/17 43/18 43/20 44/15 55/18 55/19 55/21 58/10 60/19 65/11 67/21 73/21 74/25 75/23 86/15 95/22 96/25 99/14 99/17 101/17 101/20 101/24 102/1 102/1 102/4 102/5 102/6 102/12 103/1 103/4 105/16 106/22 109/15 impenetrable [1] 37/11 implement [2] 68/11 98/25 implementation [6] 12/19 13/22 33/20 69/16 75/24 95/1 implemented [12] 10/22 12/24 13/25 14/21 29/9 30/17 51/1 68/14 94/12 96/24 97/14 98/3 implementing [4] 11/7 41/25 65/15 85/10 importance [4] 30/5 33/18 99/10 99/24 important [31] 22/5 27/21 28/20 29/6 30/21 36/23 40/12 50/16 54/11 57/15 60/4 65/21 66/14 75/7 77/13 78/12 78/23 79/10 80/25 87/21 90/1 90/14 93/4 94/19 95/16 95/18 96/18 101/16 101/18 106/6 109/11 importantly [1] 56/18 impose [3] 15/2 79/21 81/22 imposed [2] 12/25 14/18 imposing [1] 79/11 imprimatur [1] 6/5 improve [3] 65/16 74/14 75/25 improved [2] 33/4 111/11 improvement [1] 46/5 improving [2] 42/24 85/5 in [467] in-depth [3] 44/9 83/25 108/23 in-house [1] 9/2 inaccuracy [1] 9/5 inch [1] 66/4 inches [2] 40/25 42/19 incidental [6] 5/11 7/24 9/15 13/3 83/12 102/8 include [2] 66/16 100/18 included [2] 83/1 84/12 includes [1] 17/3 including [13] 7/5 7/5 13/9 41/5 42/23 50/14 53/25 65/15 67/7 85/6 85/7 85/7 112/3 inconsistent [2] 18/21 76/14 increase [9] 18/15 57/3 57/4 57/7 86/12 92/15 92/17 96/4 96/8 increased [6] 9/14 48/9 58/1 59/2 73/19 82/18 increment [1] 86/15 incrementally [1] 99/5 indeed [5] 13/15 29/23 32/24 94/14 103/1 independent [4] 13/13 103/7 107/23 108/16 indicate [1] 31/22 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 122 of 134 I indicated [7] 22/9 45/3 52/5 52/11 62/16 73/4 76/7 indication [1] 107/20 individual [1] 7/13 individuals [10] 7/20 30/12 37/19 57/9 60/21 60/24 83/4 101/17 101/20 110/1 indulgence [1] 30/1 information [34] 6/14 9/2 10/11 27/12 27/22 28/7 30/4 30/18 31/12 31/17 32/9 32/16 32/23 33/17 53/9 53/22 54/2 54/14 59/1 59/7 60/12 69/17 69/19 70/7 70/16 70/18 71/17 87/11 87/18 87/22 88/25 93/7 105/4 106/7 informed [2] 9/5 105/23 infrastructure [7] 25/9 26/6 26/11 26/19 36/17 39/21 39/22 initial [10] 6/5 6/19 32/16 34/19 46/2 46/11 46/15 88/6 93/11 96/19 initially [2] 12/1 101/6 initiation [1] 59/12 Initiative [1] 47/22 injunction [2] 69/14 78/14 input [8] 9/7 27/14 51/14 71/18 83/13 87/13 105/3 106/16 inputs [1] 9/14 inquire [3] 12/16 12/17 14/17 inquiry [3] 63/24 98/6 98/10 insignificant [4] 6/7 10/2 10/7 102/5 instability [1] 22/2 instance [7] 11/3 19/3 20/19 65/11 81/1 81/11 105/20 instances [1] 95/20 instead [8] 12/6 31/17 39/18 63/3 72/4 74/21 75/14 105/19 institutional [1] 112/7 instructed [1] 32/14 integral [4] 16/22 92/5 99/25 100/18 integrate [2] 98/7 99/12 integrated [1] 15/13 integration [4] 95/2 98/8 98/12 100/6 integrity [1] 32/13 intend [1] 34/9 intends [1] 92/21 intensity [4] 40/13 40/13 53/13 60/2 intent [2] 21/17 24/4 interacted [1] 106/11 interaction [1] 19/11 interagency [1] 13/7 interconnected [1] 19/10 interest [2] 21/14 98/23 interested [4] 49/25 50/3 50/6 52/23 interesting [1] 74/4 interests [1] 12/5 interfere [1] 100/23 intermediate [1] 38/5 intermediate-level [1] 38/5 internal [3] 54/25 55/1 55/13 internet [1] 55/4 interpret [1] 108/10 interpretation [6] 18/3 73/5 73/12 78/25 79/1 103/18 intervenor [3] 1/11 2/13 3/23 intervention [2] 27/20 28/12 into [26] 4/20 5/20 5/25 6/20 12/16 12/17 14/17 15/14 18/16 19/25 20/8 28/21 42/3 52/9 53/14 54/20 57/8 59/15 60/6 64/8 87/8 97/17 98/7 105/10 105/16 110/15 invasive [2] 104/3 104/5 invertebrate [1] 30/15 invertebrates [1] 51/10 involve [3] 8/9 28/1 29/14 involved [4] 8/10 8/21 60/13 96/21 involvement [3] 28/24 32/13 33/1 involving [1] 31/19 irrelevant [1] 73/4 irretrievable [1] 105/12 irreversible [1] 105/12 irreversibly [1] 105/14 is [355] isn't [10] 18/4 21/21 26/2 33/10 47/2 55/2 86/17 99/1 99/7 104/6 isolation [3] 66/13 110/5 111/22 issue [44] 8/21 9/1 10/14 10/15 11/16 12/7 12/11 13/16 13/23 18/1 18/13 20/21 27/16 28/22 28/22 29/22 29/24 29/25 47/22 48/5 53/5 61/12 62/14 64/20 68/18 68/23 72/9 72/9 72/10 72/24 78/21 78/22 81/13 89/12 93/3 96/13 96/17 100/9 101/3 101/7 102/7 102/22 104/22 110/3 issued [8] 5/11 7/24 9/15 54/11 64/7 76/18 76/20 94/25 issues [30] 5/1 5/6 5/20 5/23 6/1 7/4 27/7 27/10 27/19 28/4 28/15 28/19 29/13 29/22 30/4 30/9 34/4 34/9 59/4 68/15 68/19 69/2 90/17 94/3 100/3 101/11 110/19 111/2 111/15 112/6 it [226] it's [88] 20/2 20/11 22/7 23/3 23/4 24/25 26/16 26/19 27/20 28/20 29/6 30/21 33/11 39/4 39/24 39/24 40/7 42/19 44/14 44/15 44/15 45/16 49/4 49/21 50/15 51/6 52/14 54/11 55/3 56/7 58/8 58/13 59/10 59/13 59/13 60/4 60/5 60/6 62/3 66/14 70/24 71/1 73/4 73/11 74/4 76/14 78/12 78/19 79/5 79/14 79/19 80/25 81/2 81/14 82/16 83/15 83/18 85/25 86/5 86/6 88/11 88/17 88/24 90/3 91/14 91/15 91/16 93/8 93/15 93/21 93/21 94/6 94/19 95/16 95/18 96/4 97/7 97/14 98/3 100/18 101/10 101/16 101/18 105/2 105/17 107/7 108/23 111/3 its [80] 6/5 6/10 7/18 8/1 8/18 9/17 9/25 10/5 10/10 10/11 12/4 12/9 12/18 14/12 14/14 14/19 14/24 15/13 15/24 17/12 18/3 18/6 19/8 22/20 27/24 27/25 28/11 30/11 31/21 32/21 33/17 37/20 39/12 44/20 44/22 47/3 48/15 48/17 51/16 51/22 54/13 54/22 54/25 55/1 55/1 55/4 55/9 55/9 55/13 62/24 71/11 72/6 72/7 73/6 73/12 75/3 77/3 80/4 81/7 81/18 81/23 89/1 94/6 102/3 102/9 105/21 106/13 106/23 106/24 108/2 108/4 108/5 108/10 108/13 108/14 108/15 109/1 109/14 109/22 111/14 itself [11] 15/8 35/19 35/22 47/24 52/16 59/11 66/20 79/21 80/3 81/19 94/16 J Jazz [1] 88/8 Jeff [1] 96/1 Jefferson [1] 2/14 jeopardize [3] 19/12 81/12 81/13 jeopardizing [1] 15/17 jeopardy [20] 12/15 12/23 13/24 14/4 14/16 15/6 15/22 15/24 60/14 77/3 77/11 77/16 77/20 81/19 94/8 107/22 108/4 108/16 108/21 109/25 job [4] 14/8 14/9 75/18 75/21 jobs [1] 39/19 joining [2] 3/19 85/1 judge [11] 1/20 7/1 8/25 13/19 14/11 14/23 76/19 78/15 78/25 80/14 80/17 judge's [1] 22/11 judgment [7] 50/15 50/21 51/16 53/9 54/4 106/13 106/14 judicial [3] 27/20 28/12 97/24 jump [1] 69/21 juncture [1] 15/19 jurisdictional [1] 45/12 just [97] 8/8 8/16 9/24 11/4 12/6 15/11 16/2 16/4 16/9 16/17 16/20 18/12 19/9 19/16 21/20 22/24 23/12 24/17 26/12 27/1 27/4 28/22 29/22 29/23 34/6 37/3 37/13 37/19 38/13 39/4 39/18 39/22 46/9 46/13 47/5 48/13 48/25 49/25 50/1 52/3 57/22 61/12 62/13 64/20 65/25 68/5 68/23 69/1 69/5 70/5 70/6 70/24 71/3 71/3 72/17 72/18 73/13 74/8 76/18 78/4 78/21 79/17 80/21 81/24 83/23 85/1 86/21 86/25 87/17 87/22 87/24 89/8 90/16 91/8 92/3 92/22 93/5 93/5 93/15 96/13 98/1 99/5 101/2 102/10 102/18 102/20 103/16 104/1 104/24 105/1 105/8 107/5 110/10 110/12 110/16 110/16 110/24 K keep [9] 16/7 24/20 30/21 54/11 59/18 91/16 92/9 101/16 112/13 key [6] 6/21 7/6 7/17 59/23 72/8 94/2 kind [19] 36/6 39/5 46/3 56/2 62/8 77/6 78/18 80/2 80/2 80/21 86/17 87/15 89/8 90/2 92/9 94/22 94/24 102/11 110/16 kinds [2] 25/7 41/22 kit [1] 108/5 know [48] 4/14 20/5 20/12 20/15 20/21 25/25 26/18 33/21 39/22 41/8 45/10 47/13 47/18 48/19 50/1 50/1 52/7 52/16 53/7 53/10 55/9 55/12 56/7 56/13 57/23 59/14 60/1 66/18 68/11 68/21 70/24 71/7 71/18 71/19 72/4 72/7 89/12 89/13 89/14 91/20 91/21 93/4 100/16 101/21 104/10 104/16 105/1 110/14 knowledge [1] 66/22 known [5] 11/12 30/14 31/10 101/3 103/9 knows [3] 16/23 88/23 108/5 L LAA [9] 8/20 8/24 9/6 55/12 55/16 55/17 56/1 58/23 59/13 lack [1] 89/3 lag [1] 19/15 lags [2] 19/18 19/19 land [13] 21/25 23/11 38/25 40/14 43/13 48/9 57/6 70/15 80/22 90/5 96/20 107/17 111/18 lands [4] 46/10 49/1 79/15 79/23 landscape [3] 15/16 19/8 21/9 large [3] 22/22 23/6 81/17 largely [3] 57/14 68/10 68/13 larger [2] 25/12 40/25 last [2] 42/14 67/12 late [4] 53/23 53/24 56/7 57/25 later [2] 20/17 99/18 lateral [1] 68/25 lauded [1] 42/23 law [10] 2/5 18/9 53/8 63/12 76/15 76/16 79/11 83/5 103/11 107/2 lay [1] 59/22 laying [1] 75/22 layout [2] 37/1 111/10 lays [1] 67/6 LCR [9] 5/6 9/13 12/20 13/8 15/17 44/15 94/18 109/11 109/24 lead [3] 43/23 44/2 68/2 lean [1] 35/2 learn [1] 38/15 least [5] 20/2 39/7 71/15 76/13 79/1 leave [2] 77/25 79/8 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 123 of 134 L left [1] 81/19 legacy [2] 10/18 21/6 legal [4] 15/10 18/1 46/25 97/21 legislation [1] 46/6 length [2] 14/12 61/24 less [5] 24/9 25/18 36/18 37/5 41/10 let [9] 20/25 25/2 25/20 54/9 57/22 61/8 68/23 69/2 106/19 let's [4] 23/1 68/21 68/22 71/1 letter [7] 46/20 46/24 54/23 55/7 94/21 105/13 109/2 level [22] 13/24 28/24 32/1 32/5 33/19 38/5 44/12 44/14 60/18 71/14 74/8 77/4 77/5 77/25 94/24 95/17 95/21 98/15 98/15 98/16 105/22 107/23 leveled [1] 64/9 levels [4] 95/17 96/9 96/11 103/23 levied [1] 64/15 lift [5] 21/13 85/14 85/24 96/1 96/7 lift-assisted [1] 85/14 light [10] 27/23 28/24 43/6 44/23 50/25 51/17 53/10 70/18 72/11 108/11 lighter [1] 90/4 like [50] 4/7 4/12 5/2 5/4 5/5 5/17 6/22 8/11 8/24 10/13 11/16 11/21 12/2 15/17 16/7 19/5 19/5 19/9 19/16 24/8 26/12 27/3 28/1 28/2 28/4 30/1 33/3 33/25 34/7 34/15 37/24 45/17 46/3 46/3 47/18 48/19 50/4 55/20 69/23 70/25 77/12 87/14 87/24 90/25 91/16 94/1 95/24 99/15 101/4 108/17 likely [15] 6/9 7/10 7/11 8/18 8/20 9/18 10/6 10/9 20/4 30/13 50/22 53/11 62/11 89/2 89/3 liking [1] 53/2 limit [1] 4/15 limited [7] 21/25 22/1 22/7 33/6 53/13 69/24 91/15 limits [1] 36/8 line [6] 40/10 47/3 54/25 55/8 86/15 105/21 lines [2] 38/18 41/20 LISA [1] 1/6 list [3] 71/9 71/12 72/15 listed [17] 6/13 7/15 8/2 13/23 28/8 55/11 56/14 56/20 71/8 71/9 71/21 81/8 88/22 101/19 101/20 102/1 109/16 listen [1] 110/14 listening [1] 44/1 literally [1] 52/7 litigation [5] 28/4 29/10 48/4 48/8 68/12 little [10] 22/17 37/13 40/5 50/5 68/7 93/21 94/20 99/8 101/3 101/10 live [2] 96/9 109/22 LLA [1] 55/22 LLP [1] 2/14 LMP [1] 73/13 load [1] 18/19 loaded [1] 92/6 LOC [2] 54/24 60/5 local [1] 73/21 localized [3] 33/6 60/24 73/21 located [9] 22/6 22/15 36/4 51/14 52/7 52/10 52/15 52/15 93/16 location [3] 25/16 39/5 55/4 locations [1] 24/2 lodge [13] 26/1 39/8 43/9 45/25 47/19 50/12 52/15 52/18 85/16 85/25 86/6 104/2 104/5 lodges [1] 25/10 logged [1] 88/20 long [10] 4/15 18/16 29/15 42/10 43/12 47/15 56/11 58/20 83/6 92/20 long-term [1] 18/16 longstanding [2] 65/1 67/3 look [40] 6/11 11/23 15/12 23/5 28/9 31/23 34/3 39/1 43/15 44/11 46/11 46/18 48/18 50/2 52/2 53/24 56/5 60/19 61/15 63/19 69/5 71/15 71/17 82/25 86/8 88/25 89/8 89/17 90/24 95/18 99/5 99/13 99/13 99/14 99/20 99/20 100/11 103/1 103/7 104/21 looked [9] 6/15 20/9 31/16 55/7 59/23 60/22 71/18 97/10 103/25 looking [9] 25/15 56/6 58/1 78/15 81/11 81/15 87/18 101/24 102/1 looks [4] 50/18 60/20 98/6 98/10 loop [4] 70/11 87/9 87/9 106/7 loss [1] 104/7 lot [9] 19/5 19/5 72/12 87/17 90/11 94/1 96/16 98/24 101/16 lots [2] 25/10 34/25 loud [1] 23/12 low [2] 32/1 55/25 LOWD [1] 74/17 lower [14] 5/7 6/7 23/9 24/6 28/8 37/9 52/18 54/1 56/15 57/2 58/10 59/25 72/23 106/22 lowered [1] 48/10 Lynch [1] 2/21 M made [37] 9/11 9/23 12/20 13/24 14/7 15/19 31/17 41/4 45/13 46/7 46/15 51/12 51/16 53/15 54/12 58/25 59/14 60/1 64/17 67/16 69/9 72/6 72/10 73/20 74/24 78/25 100/10 101/1 101/17 102/25 104/12 106/6 106/15 106/20 106/23 107/6 111/7 magnitude [4] 7/8 7/18 11/25 102/6 main [2] 25/5 76/9 maintain [9] 16/21 17/5 17/8 17/10 21/8 21/19 22/4 22/8 102/24 maintained [1] 56/24 maintaining [2] 21/9 85/5 maintenance [1] 9/13 major [3] 31/5 33/14 67/12 majority [4] 5/16 31/23 76/6 109/9 make [20] 23/23 32/15 38/6 38/22 40/3 42/3 55/23 58/14 71/3 72/18 75/13 79/7 85/18 90/4 92/15 94/2 96/19 106/13 108/16 110/24 makes [1] 49/3 making [8] 32/20 47/1 87/21 97/20 100/9 100/14 106/13 108/23 manage [1] 51/22 managed [1] 72/8 management [22] 36/7 36/9 38/25 43/14 50/25 53/10 57/6 65/21 66/15 66/25 67/9 70/15 70/15 80/22 81/6 91/13 93/9 104/10 104/12 106/14 107/17 111/18 mandate [1] 53/7 manner [1] 54/16 many [14] 4/1 24/8 25/12 39/15 74/23 81/15 83/4 86/22 90/14 99/15 99/15 101/11 110/14 111/6 map [16] 5/4 22/10 22/14 22/19 23/2 23/10 23/17 23/23 24/2 34/18 34/22 35/6 35/8 40/10 40/13 96/15 March [1] 88/18 March 2015 [1] 88/18 marginal [3] 57/14 59/24 109/10 marginalize [1] 102/11 Marine [8] 5/12 11/17 45/7 84/3 84/9 107/15 108/20 108/25 Marsh [1] 87/7 Martin [7] 2/9 3/18 34/19 44/25 72/24 96/15 109/8 Martin's [1] 68/23 master [14] 5/21 28/23 28/25 33/24 45/14 46/22 47/6 47/8 47/23 48/3 48/6 48/8 48/12 98/16 mathematician [1] 37/4 matter [3] 3/16 18/8 103/11 matters [1] 96/5 maximizing [1] 90/13 maximum [2] 43/4 43/20 may [28] 7/9 14/25 19/17 19/17 20/5 27/4 28/10 32/15 33/5 34/22 37/19 62/9 62/23 68/20 68/23 69/2 69/11 71/2 76/21 79/17 82/16 82/23 82/24 88/12 89/25 93/19 98/25 110/23 maybe [2] 85/1 90/18 Maynard [4] 2/13 3/22 85/2 106/5 MDP [6] 28/19 29/1 29/9 96/13 97/19 98/7 me [19] 25/2 25/20 34/2 37/18 54/9 57/21 57/22 61/8 68/23 69/2 72/5 82/24 84/14 89/14 90/19 91/8 97/8 97/14 103/16 Meadows [6] 28/23 29/8 29/12 29/14 48/2 97/12 mean [7] 21/22 59/20 68/17 71/13 90/21 90/21 102/19 meaning [1] 16/10 meaningful [4] 9/7 64/14 67/18 98/18 means [7] 17/14 29/19 30/11 30/13 81/20 95/5 95/6 meant [1] 86/6 meanwhile [1] 69/17 measure [4] 11/8 15/22 63/2 95/21 measure's [1] 10/25 measurement [3] 90/20 95/13 95/15 measurements [2] 67/16 95/19 measures [17] 13/2 13/2 17/25 18/6 28/5 28/5 65/23 67/14 84/11 87/13 87/15 92/6 93/8 94/10 95/10 111/23 111/24 mechanically [1] 58/17 meet [5] 3/24 14/21 22/8 24/4 38/24 members [1] 52/23 memory [1] 112/7 mention [1] 70/20 mentioned [11] 6/1 8/8 8/24 40/23 46/5 48/2 56/13 87/5 89/22 92/20 95/16 mere [2] 64/18 111/25 merits [1] 27/4 met [2] 32/18 59/4 metaphor [2] 19/22 42/1 meters [1] 100/19 methodology [2] 18/2 78/1 methods [1] 77/15 Methow [2] 70/9 87/6 metric [1] 96/3 might [17] 11/8 25/16 28/15 41/12 48/18 50/5 54/15 54/23 54/23 55/13 74/9 79/18 79/18 84/6 91/12 92/24 110/16 mild [1] 89/22 mile [4] 37/10 37/12 56/14 63/7 miles [9] 17/22 22/22 23/6 26/11 35/24 36/11 42/17 88/15 88/15 million [3] 20/4 35/19 86/14 mind [7] 30/21 50/16 54/11 59/10 59/18 60/4 93/6 minimal [1] 109/23 minimization [3] 41/5 74/22 92/6 minimize [6] 13/3 22/20 65/11 75/22 101/20 102/23 minimized [2] 40/20 43/4 minimizing [1] 74/25 minimum [1] 92/9 minimus [1] 102/14 minor [2] 59/25 86/15 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 124 of 134 M minute [2] 37/5 72/3 minutes [3] 82/6 84/20 85/20 misapplied [1] 109/4 misinterpretation [1] 107/1 mispronouncing [1] 107/7 misread [1] 76/21 missed [1] 96/23 missing [4] 25/2 96/12 99/5 107/19 mistakenly [1] 58/22 mitigate [3] 31/18 32/10 33/13 mitigated [1] 63/10 mitigation [11] 10/22 11/5 11/8 17/14 17/16 63/16 64/20 65/9 74/21 84/11 111/24 mix [1] 62/19 model [1] 86/1 modeling [1] 43/18 modification [1] 107/22 modifications [1] 90/3 modify [1] 81/12 moment [3] 27/4 82/24 105/2 money [1] 98/24 monitor [1] 83/16 monitoring [12] 41/18 41/24 67/7 80/2 82/3 83/1 83/8 91/25 92/4 92/7 92/8 112/3 moot [1] 68/10 more [31] 3/25 11/24 24/7 25/12 38/2 39/4 39/17 41/16 46/17 47/5 48/15 49/14 56/8 56/14 56/18 57/6 58/3 64/11 64/11 66/20 66/21 79/14 80/14 86/18 89/22 89/24 90/5 90/9 94/21 99/8 101/25 Moreover [1] 66/24 morning [1] 73/16 most [11] 20/2 20/3 29/13 36/23 38/2 41/19 44/3 45/10 73/16 83/23 88/21 mostly [1] 72/11 motions [2] 34/10 34/11 mountain [31] 21/22 35/17 35/20 35/24 36/1 36/16 36/18 36/20 37/23 37/23 38/1 38/2 38/15 38/16 41/21 43/9 45/12 47/10 47/20 49/15 52/19 62/18 66/18 66/22 67/2 67/4 67/21 85/7 85/14 86/9 112/5 move [10] 5/13 45/5 47/17 48/15 63/4 70/25 73/2 85/10 100/3 112/15 moved [3] 75/7 75/8 75/8 moves [1] 91/24 moving [2] 5/25 96/13 Mr [9] 2/4 2/4 2/9 2/9 2/13 2/21 2/21 4/12 106/5 Mr. [38] 3/19 34/18 34/19 36/13 37/18 42/1 42/7 44/25 45/3 46/5 48/2 51/19 52/4 56/12 61/4 61/23 65/6 68/23 72/19 72/24 73/4 76/6 76/9 83/20 84/24 85/17 87/5 87/22 89/16 94/5 96/15 106/19 107/6 107/8 107/19 108/8 109/8 110/3 Mr. Doug [1] 3/19 Mr. Martin [5] 34/19 44/25 72/24 96/15 109/8 Mr. Martin's [1] 68/23 Mr. Odell [10] 45/3 46/5 52/4 56/12 61/4 72/19 85/17 87/5 94/5 106/19 Mr. Stiefel [20] 34/18 36/13 42/1 42/7 48/2 51/19 61/23 65/6 73/4 76/6 76/9 83/20 84/24 87/22 89/16 107/6 107/8 107/19 108/8 110/3 Mr. Stiefel's [1] 37/18 Ms [2] 2/21 2/21 Mt [9] 1/7 5/8 22/15 22/21 28/23 31/5 48/2 48/4 49/15 Mt. [17] 3/9 3/14 12/19 23/20 23/21 24/12 26/17 29/7 29/9 35/22 48/8 49/19 88/8 94/9 97/12 99/10 106/4 Mt. Hood [15] 3/9 3/14 23/20 23/21 24/12 29/7 29/9 35/22 48/8 49/19 88/8 94/9 97/12 99/10 106/4 Mt. Hood's [2] 12/19 26/17 much [19] 4/4 4/24 5/3 16/12 25/12 38/11 50/4 56/7 64/11 67/20 70/2 80/14 81/14 86/6 99/16 101/12 101/25 103/13 106/20 multiple [1] 53/7 multiyear [1] 106/3 must [9] 10/10 15/19 16/18 17/2 17/12 55/11 74/6 95/7 102/16 my [23] 4/6 5/2 5/16 10/13 16/3 22/24 29/11 29/17 33/25 69/22 75/12 85/18 85/20 87/25 89/8 91/5 93/6 93/7 93/25 104/22 107/8 110/16 112/13 N name [2] 3/6 107/7 named [1] 72/9 narrow [2] 27/14 112/13 narrowest [3] 27/5 29/19 89/10 national [21] 1/7 5/12 11/17 22/21 24/12 45/7 46/10 46/20 46/21 47/4 47/9 84/3 84/9 85/8 88/8 94/9 105/18 105/22 107/15 108/19 108/25 Native [1] 28/13 natural [2] 19/9 67/18 nearby [1] 42/18 nearest [1] 63/7 nearly [3] 35/20 35/22 88/20 necessarily [4] 10/19 20/12 21/21 91/22 necessary [3] 15/2 17/5 27/15 necessitate [1] 28/16 need [27] 4/15 4/16 19/17 20/18 22/1 22/2 25/9 27/20 28/11 33/14 34/12 37/23 50/4 52/12 52/13 55/14 56/1 56/3 59/17 63/8 77/11 92/1 99/13 99/14 104/11 107/16 110/17 needed [4] 44/11 54/8 56/4 76/22 needless [1] 46/1 needs [9] 22/7 30/18 49/8 62/5 66/9 78/16 102/9 107/11 107/18 negative [5] 11/6 55/20 56/2 57/5 58/10 negatively [2] 9/13 32/3 neither [1] 31/12 NEPA [86] 5/9 5/18 5/18 6/2 6/4 6/5 6/16 6/25 7/4 7/8 8/3 8/10 8/13 8/18 9/19 9/25 10/5 10/10 10/11 27/10 27/25 30/3 30/19 31/13 32/12 34/20 34/21 45/5 45/11 46/17 46/22 47/7 47/11 47/15 47/25 48/14 49/3 49/4 50/9 50/9 50/13 50/18 50/19 51/4 53/16 53/18 54/8 58/12 58/13 58/16 59/20 60/3 60/10 60/16 60/18 60/20 61/7 61/21 61/21 62/24 63/18 65/19 68/16 69/11 69/22 70/11 70/17 73/2 86/18 87/21 88/25 89/6 98/12 99/18 100/3 100/10 101/1 101/23 101/25 102/4 102/9 104/11 105/10 106/8 106/15 107/2 NEPA's [1] 99/11 nephelometric [1] 82/5 nest [2] 52/8 100/18 nesting [5] 30/13 32/6 51/20 72/9 100/20 nests [7] 51/25 52/4 52/10 52/12 100/17 101/13 104/19 net [6] 43/23 44/2 55/10 55/11 73/22 103/8 Network [1] 63/13 neutralize [1] 11/6 never [5] 8/3 31/16 87/23 99/3 102/25 new [47] 6/15 9/1 10/11 10/24 17/20 19/18 19/21 21/16 21/18 25/9 26/10 27/12 27/22 28/7 29/14 30/4 31/12 31/16 32/8 32/9 32/11 32/16 32/20 33/12 33/17 39/20 39/20 53/9 53/22 54/2 54/14 59/1 59/7 69/17 69/18 69/19 69/20 70/7 70/16 70/17 79/11 87/10 87/18 88/25 94/25 106/7 106/8 Newly [1] 30/24 next [3] 5/12 10/13 92/14 NFMA [5] 5/13 10/15 76/21 102/11 111/5 NFMS's [1] 6/5 Nice [1] 68/25 Ninth [21] 8/12 12/11 13/14 28/13 32/14 50/16 60/12 60/15 63/11 76/14 76/16 77/13 78/3 81/20 88/5 88/6 100/8 102/13 102/15 107/1 108/12 NLAA [8] 6/9 7/19 8/15 8/18 9/6 9/10 9/21 59/14 NMFA [5] 27/10 34/21 73/3 86/18 111/18 NMFS [78] 6/11 6/17 7/25 11/22 12/8 12/14 12/15 12/17 12/21 13/11 14/3 15/5 15/7 15/11 15/13 15/21 15/25 37/14 37/20 45/9 54/11 54/21 54/25 55/7 55/9 55/12 56/1 56/18 57/1 57/2 57/8 57/8 57/10 57/12 57/13 57/16 59/10 59/19 76/17 77/10 77/15 77/19 77/21 77/23 78/16 79/2 79/7 80/8 81/11 81/18 81/22 82/10 82/19 82/25 83/5 83/9 83/11 83/14 83/19 84/1 89/1 94/6 94/16 94/25 95/7 95/10 102/5 106/21 106/23 107/11 107/21 108/1 108/2 108/5 108/8 108/9 109/14 109/20 NMFS' [1] 56/25 NMFS's [5] 6/15 11/16 53/25 94/3 109/18 no [64] 1/4 3/3 7/20 10/3 12/15 12/23 13/23 14/3 14/16 15/6 15/24 16/9 17/4 17/7 19/25 21/22 25/4 25/23 26/18 29/2 34/2 36/1 36/6 39/22 40/24 41/16 58/5 58/6 58/6 60/14 61/5 61/12 62/22 63/16 63/25 67/17 70/12 77/3 77/16 77/20 77/22 86/4 88/4 89/19 90/10 91/17 94/8 95/15 96/24 98/23 98/25 99/19 102/4 102/13 106/17 106/24 107/10 107/22 107/22 108/16 108/21 109/25 111/3 111/21 No. [2] 83/9 110/10 No. 3 [1] 83/9 No. 8 [1] 110/10 nobody [1] 38/10 Nods [1] 55/24 non [1] 1/3 non-profit [1] 1/3 nondiscretionary [1] 13/2 none [3] 8/8 46/1 48/11 nor [5] 31/13 37/15 57/15 105/15 105/17 northern [2] 8/22 60/15 NORTHROP [3] 1/6 3/3 88/5 Northwest [15] 3/8 5/15 10/16 10/21 11/1 11/4 12/20 13/22 19/2 21/5 21/14 27/2 36/25 79/25 80/25 northwestern [1] 100/5 not [162] not in [1] 98/2 note [5] 21/20 85/18 86/25 88/2 101/22 noted [2] 57/25 86/24 notes [2] 84/25 89/8 noteworthy [1] 52/14 nothing [4] 48/13 49/3 62/21 72/1 notice [5] 9/9 9/22 31/19 91/14 94/21 noticed [1] 56/12 notion [4] 75/10 109/14 109/24 111/24 notwithstanding [1] 73/21 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 125 of 134 N November [1] 1/7 novo [1] 62/8 now [48] 8/6 11/15 13/10 13/10 15/8 15/10 16/13 16/17 18/22 19/14 19/22 22/9 28/18 30/1 31/4 31/7 39/25 40/11 40/18 40/21 42/7 42/14 46/15 49/6 49/15 50/8 64/16 68/13 69/11 69/22 73/4 74/10 74/19 75/5 75/16 76/4 80/10 86/14 87/4 89/8 91/5 92/23 95/13 96/13 97/2 100/22 101/3 101/15 nowhere [1] 66/25 NSO [1] 8/22 NTU [1] 96/8 NTUs [2] 82/6 82/9 nuances [1] 90/15 number [13] 12/3 18/12 19/11 21/7 23/24 24/2 26/4 26/7 26/16 35/17 57/9 62/3 93/3 numbers [4] 30/24 35/11 91/13 91/15 O o0o [1] 113/2 Oak [1] 2/5 object [1] 74/5 objectives [4] 13/6 14/22 17/3 38/24 obligated [1] 53/6 obligation [3] 38/23 59/4 109/15 obligations [5] 14/14 14/25 43/14 97/22 109/22 observation [1] 48/13 observe [1] 51/6 obvious [1] 97/7 obviously [12] 33/13 34/15 36/5 56/7 62/13 64/22 69/18 74/6 80/19 80/22 108/8 111/15 occupied [3] 37/15 57/11 63/7 occur [5] 32/11 62/9 62/9 62/11 66/17 occurred [2] 48/11 67/12 occurs [1] 111/3 odds [1] 11/13 Odell [12] 2/9 3/16 45/3 46/5 52/4 56/12 61/4 72/19 85/17 87/5 94/5 106/19 off [5] 35/24 36/8 48/20 84/6 84/7 offered [1] 50/3 offhand [1] 94/22 Office [3] 2/10 3/18 3/20 Official [1] 113/11 offset [8] 11/1 18/17 19/21 20/22 26/25 43/21 65/9 75/14 offsetting [3] 17/15 19/23 21/16 oh [2] 69/22 75/12 oil [1] 60/15 okay [14] 23/4 35/3 35/10 35/15 41/9 61/2 61/19 68/22 72/20 77/5 81/11 100/4 110/21 110/22 old [2] 21/13 88/20 older [1] 71/12 Oliver [3] 2/4 3/8 93/20 on [232] Once [1] 93/20 ONDA [1] 80/8 one [45] 7/18 13/3 13/7 13/15 19/12 19/25 24/20 27/8 28/22 33/9 37/10 39/21 41/6 44/14 45/14 46/24 47/5 48/11 65/7 66/4 66/20 67/11 68/15 71/1 71/23 75/2 80/7 80/13 81/11 82/21 85/15 85/24 87/5 90/18 91/18 92/16 92/20 93/25 96/24 98/25 99/4 99/13 99/19 109/20 111/1 one-page [3] 45/14 46/24 48/11 online [1] 55/3 onlookers [1] 35/1 only [32] 5/20 6/6 14/9 23/24 25/6 26/22 29/25 32/15 38/8 39/21 39/24 40/7 40/18 40/23 49/21 51/14 51/18 51/19 57/11 59/1 66/4 70/14 83/15 85/13 85/14 86/7 96/23 100/24 101/17 105/11 109/25 111/17 ONRC [2] 87/7 102/12 op [1] 19/15 open [3] 77/25 79/8 81/19 opened [1] 49/12 opening [9] 4/6 6/3 11/19 16/15 30/6 53/20 55/5 61/24 83/21 operate [2] 20/6 41/11 operated [1] 85/3 operating [2] 38/20 68/1 operation [6] 9/12 17/21 18/15 100/16 103/2 103/5 operations [8] 66/5 66/9 66/23 82/7 82/8 82/16 83/17 111/2 opinion [65] 5/11 6/18 12/18 12/21 14/12 14/19 15/4 29/21 37/21 45/7 53/18 53/25 54/6 54/6 54/7 55/15 56/5 56/6 56/19 57/24 58/1 58/2 59/12 59/24 60/5 60/14 60/23 61/17 61/19 72/25 76/20 76/24 77/7 77/7 77/16 79/2 79/6 79/15 80/17 80/18 82/20 82/23 83/19 87/19 89/2 95/1 95/4 95/6 101/15 106/23 107/13 107/14 107/21 108/1 108/8 108/10 108/11 108/14 108/24 109/6 109/9 109/13 109/18 109/25 111/17 opinions [2] 63/22 111/14 opportunities [7] 25/8 26/9 39/9 39/14 39/17 42/11 85/23 opportunity [11] 4/7 27/12 27/19 28/1 33/25 35/8 38/15 39/12 40/2 78/10 107/8 opposed [3] 9/6 52/17 69/21 opposite [1] 102/20 option [3] 29/18 34/3 78/10 options [1] 108/12 or [101] 2/6 2/11 2/18 4/16 5/18 8/10 10/7 10/22 14/4 14/23 17/14 17/16 19/17 20/9 22/1 22/7 24/15 28/2 30/23 30/24 33/4 33/6 33/24 35/14 36/6 36/9 41/10 41/12 43/8 43/9 44/14 44/14 46/12 48/21 49/10 50/18 52/17 53/2 54/16 54/20 59/14 60/5 61/17 61/22 62/4 62/9 62/9 62/9 65/9 66/2 66/6 66/7 67/6 67/9 67/19 67/23 69/15 71/1 73/1 73/17 74/21 78/16 79/12 79/18 79/20 79/20 80/2 80/16 81/6 81/6 81/12 81/13 82/6 84/10 85/20 85/25 86/18 86/18 89/19 90/2 90/5 90/25 91/6 92/16 97/6 97/21 98/3 98/21 98/23 98/23 100/19 105/12 106/24 107/11 107/22 109/21 109/22 110/11 111/25 112/2 113/7 oral [2] 1/17 3/2 orange [1] 36/3 oranges [1] 24/25 order [3] 39/13 62/19 65/4 OREGON [9] 1/2 1/3 1/8 1/9 29/23 88/11 88/17 93/10 95/23 organized [1] 16/10 oriented [1] 85/16 original [10] 8/13 28/16 29/17 40/19 64/9 64/23 75/3 101/6 102/4 113/6 originally [2] 62/23 75/11 ostensibly [1] 62/16 other [54] 6/8 6/18 7/22 8/8 16/5 23/8 24/2 24/19 24/21 25/21 26/5 26/8 27/19 28/1 28/3 32/25 33/5 33/11 36/7 37/22 39/22 41/12 42/2 49/8 49/9 49/18 49/23 57/5 60/17 62/14 65/12 66/21 67/8 67/23 69/10 70/4 70/15 71/1 81/19 83/21 84/14 86/15 88/1 88/4 89/6 89/9 89/14 89/19 92/8 95/19 100/23 107/5 108/17 110/7 otherwise [6] 5/23 79/20 86/11 90/8 100/19 109/22 ought [1] 42/23 our [46] 4/13 6/3 6/3 10/21 11/18 11/19 11/20 16/5 16/13 16/15 25/5 26/6 28/11 30/6 30/7 34/7 34/8 35/11 38/24 38/24 39/7 44/24 47/13 50/15 53/8 55/17 71/6 71/16 72/18 73/7 80/6 83/21 85/4 85/21 86/16 86/17 87/16 90/6 94/20 94/21 95/23 97/16 103/18 109/2 109/4 111/17 ourselves [2] 77/25 78/7 out [65] 4/11 4/21 4/25 7/2 10/23 13/19 14/24 20/10 21/21 23/12 28/22 29/1 29/6 29/21 35/19 36/13 37/3 37/4 37/8 39/7 41/3 41/17 42/8 46/12 53/5 56/19 59/22 63/6 65/25 66/24 67/6 69/5 69/20 70/9 71/21 72/11 75/14 75/16 75/22 76/11 77/23 79/14 81/20 85/25 86/7 87/14 90/15 91/3 91/21 92/10 93/5 93/14 94/14 94/20 98/23 101/2 101/4 101/8 102/13 104/5 104/24 106/12 108/7 109/16 112/15 outcomes [2] 19/6 20/21 outline [2] 22/17 36/3 outlines [1] 23/20 outset [2] 11/21 12/2 outside [3] 53/6 88/24 105/24 over [24] 9/21 15/11 19/18 19/19 29/15 34/19 34/20 34/25 35/3 35/11 35/19 35/24 37/3 37/10 37/12 44/25 60/3 61/3 63/7 67/3 73/22 82/8 82/16 112/5 overcome [1] 9/2 overestimating [1] 68/8 overlap [1] 81/9 overlay [1] 102/21 overstating [1] 97/5 overstepped [1] 80/4 overview [2] 34/6 45/18 overwintering [5] 32/7 51/20 51/24 72/10 100/21 owes [2] 73/5 74/15 owl [2] 8/22 88/22 own [21] 17/12 18/6 21/15 28/11 44/20 44/22 55/13 67/7 73/10 81/18 81/23 93/6 94/6 96/1 105/21 107/17 108/4 108/10 108/15 109/18 111/14 P Pacific [2] 10/21 76/16 page [9] 45/14 46/24 47/12 48/11 55/5 55/6 78/24 83/9 93/12 pages [14] 6/2 11/19 11/19 16/15 16/16 30/6 41/23 41/24 50/15 53/20 71/21 82/1 96/7 111/11 paid [1] 29/15 pairs [1] 8/22 paper [1] 67/5 paragraphs [1] 45/22 parameters [3] 71/11 91/22 92/1 pardon [1] 72/5 park [14] 18/14 22/17 26/1 36/16 37/24 38/7 38/8 38/12 45/12 47/10 47/20 49/15 67/21 86/12 parking [5] 25/10 26/1 45/25 52/16 72/12 parks [1] 41/3 parlance [1] 55/12 part [17] 36/16 37/14 38/5 38/7 38/13 41/20 58/16 60/7 64/22 64/25 77/21 83/1 83/18 91/17 93/3 97/7 105/9 participation [1] 86/21 particular [56] 14/12 24/20 28/9 28/19 34/10 37/2 37/20 38/22 39/5 39/5 39/6 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 126 of 134 P particular... [45] 40/4 40/15 42/3 42/13 43/8 43/9 44/6 44/8 44/13 62/5 62/10 62/24 63/1 63/2 63/9 63/12 63/15 65/2 65/12 65/14 65/25 66/1 66/12 67/13 67/15 68/9 73/8 74/23 76/13 79/18 80/2 80/2 80/3 80/10 80/11 80/20 82/21 84/2 92/2 105/20 110/4 110/8 111/1 111/8 112/6 particularly [5] 57/15 65/1 69/12 73/25 109/11 parties [8] 4/5 28/3 48/5 49/21 55/3 68/11 89/12 96/16 parts [1] 22/1 Pass [3] 47/8 47/17 49/10 passing [1] 83/23 past [2] 10/18 29/9 patterns [1] 19/8 pause [1] 27/3 Payette [1] 63/14 PCFFA [10] 12/12 13/14 14/13 76/25 77/14 77/19 81/20 94/23 102/15 108/13 PDC [3] 32/11 32/20 96/6 PDCs [1] 66/8 penalize [1] 42/22 pencil [1] 98/23 people [11] 48/18 48/19 49/7 52/16 72/4 86/13 90/11 91/21 91/24 104/14 110/14 per [1] 86/13 percent [4] 36/19 37/5 41/17 42/20 perfect [1] 53/3 period [1] 82/6 Perkins [1] 2/14 permissible [2] 13/13 27/2 permission [4] 34/23 73/2 84/19 92/24 permit [11] 17/13 36/14 36/19 38/20 38/21 40/3 43/10 63/6 64/23 97/1 98/7 personnel [2] 52/1 52/2 perspective [7] 35/10 71/6 85/22 86/16 86/17 87/16 90/6 perspectives [1] 84/22 persuaded [1] 16/3 persuasive [1] 78/19 phrase [2] 75/16 75/17 physical [3] 7/20 7/23 10/3 PI [2] 78/22 80/18 pick [1] 75/16 picture [7] 6/24 8/4 22/25 46/11 50/22 53/11 72/13 pictures [1] 51/3 piece [4] 37/13 40/11 70/7 70/17 piecemeal [4] 49/24 49/25 50/3 50/6 piggyback [1] 24/22 pillars [1] 67/24 pincite [2] 9/8 15/4 pinpoint [1] 80/9 pitch [2] 41/15 41/16 pitched [1] 38/2 place [17] 17/2 21/24 24/3 24/23 25/25 26/3 36/18 42/13 51/17 52/10 53/14 56/17 71/10 90/13 97/6 105/11 106/2 placed [2] 10/25 11/7 places [2] 26/1 37/22 plain [2] 18/6 45/22 plaintiff [3] 3/5 85/6 86/22 plaintiffs [29] 1/4 2/4 3/8 3/12 11/22 12/3 27/11 28/18 44/17 50/10 58/9 62/12 63/10 63/23 66/2 66/12 68/7 72/22 73/9 73/14 74/5 75/17 93/21 101/6 101/8 103/18 105/18 106/20 111/7 plaintiffs' [15] 12/8 27/8 44/1 53/4 55/5 64/16 73/16 87/2 90/5 96/20 98/8 98/14 100/6 105/9 106/21 plan [58] 5/15 5/16 5/21 11/1 11/5 12/19 12/20 13/22 18/4 19/2 20/1 21/5 21/15 23/21 27/2 28/23 28/25 33/3 33/24 36/25 38/25 45/5 45/15 45/23 47/7 47/8 47/14 47/18 47/23 48/3 48/6 48/7 48/8 48/12 48/18 49/20 65/5 65/12 65/18 65/21 73/6 79/25 80/25 82/7 82/17 92/2 97/6 97/8 97/9 98/3 98/16 98/21 98/22 98/25 102/15 105/8 107/17 111/18 Plan's [1] 10/17 planned [6] 10/22 17/14 17/16 48/25 65/9 105/24 planning [9] 19/25 20/1 29/5 29/7 42/2 73/10 96/1 99/9 99/11 plans [6] 20/5 46/22 46/22 95/1 98/2 105/19 plants [1] 104/3 play [1] 27/19 please [2] 3/5 90/8 plucked [1] 66/24 pocket [1] 20/10 point [49] 7/2 8/7 23/22 24/1 24/18 25/1 25/17 25/19 25/21 26/10 26/12 28/22 29/1 29/6 29/17 29/21 33/21 35/25 37/8 37/17 39/7 46/6 46/10 49/2 49/15 49/20 51/8 51/9 51/11 51/11 52/25 52/25 55/5 58/8 60/11 63/12 65/25 72/21 72/24 80/20 87/25 90/1 91/8 94/14 100/6 101/2 106/6 108/7 110/24 pointed [3] 36/13 56/19 104/5 pointing [1] 35/19 points [16] 6/22 53/5 59/23 61/25 71/5 71/23 71/24 84/23 85/19 85/20 89/9 93/20 94/1 96/14 106/20 107/6 police [1] 81/6 policies [4] 54/25 55/9 55/14 55/22 policy [14] 31/17 32/21 46/20 47/4 55/1 55/10 55/17 65/20 71/11 100/9 100/14 105/18 105/22 109/4 pools [1] 46/9 popular [1] 86/9 population [8] 30/14 30/16 31/10 31/18 32/3 32/5 33/19 37/10 population-level [2] 32/5 33/19 population-wide [2] 30/16 31/18 populations [2] 31/2 31/7 portion [2] 57/11 75/6 portions [1] 75/8 Portland [5] 1/8 2/6 2/11 2/18 85/12 position [7] 6/15 8/1 46/21 73/7 90/10 96/21 98/8 positive [4] 44/5 55/10 55/11 55/19 possibility [1] 98/4 possible [9] 5/3 25/16 27/6 29/19 43/5 43/21 45/19 75/22 89/11 possibly [2] 98/4 99/6 post [3] 19/15 32/15 50/11 post-decision [1] 32/15 post-decisional [1] 50/11 post-op [1] 19/15 posture [2] 13/20 50/5 potential [11] 30/16 41/22 42/20 42/25 49/24 54/1 64/12 64/12 66/10 72/21 97/1 potentially [2] 31/18 101/13 practice [2] 66/15 67/9 practices [2] 67/1 91/19 pragmatic [1] 34/2 precedent [2] 76/15 88/19 precedent-setting [1] 88/19 precipitation [1] 66/4 precisely [1] 29/13 precision [1] 83/4 precluded [1] 33/6 preconstruction [1] 51/25 preconsultation [1] 8/14 predates [1] 46/20 predicate [2] 107/21 108/2 predicated [3] 79/5 79/6 112/2 predict [1] 66/19 predicted [1] 30/23 preface [1] 10/13 prefer [1] 28/18 preferred [2] 40/1 40/8 preliminary [6] 64/6 69/14 72/7 78/14 92/23 93/7 preparation [1] 28/17 prepare [6] 28/10 53/25 55/14 55/15 63/5 98/12 prepared [6] 45/19 62/5 63/2 63/8 64/5 67/5 present [3] 2/21 50/22 53/10 presentation [2] 7/6 37/18 presented [3] 4/1 58/12 58/23 presents [2] 6/23 72/12 preserve [1] 92/18 President [1] 39/8 pressing [1] 14/6 pretty [3] 59/24 59/25 103/3 preventing [1] 17/17 previous [1] 21/12 previously [3] 15/2 54/17 86/24 primarily [4] 30/4 38/1 81/5 81/25 primary [4] 16/24 56/19 56/23 56/25 prior [5] 54/22 58/17 67/16 105/25 112/3 priority [1] 65/1 prism [1] 60/20 private [1] 51/10 pro [1] 56/10 probably [3] 45/8 82/4 97/5 problem [7] 18/20 19/11 32/5 45/13 76/25 83/17 105/9 procedural [5] 30/19 32/12 63/18 70/24 100/10 procedure [5] 19/14 19/18 94/6 94/7 94/16 procedures [4] 19/17 53/16 79/11 79/22 proceed [3] 4/3 34/7 53/18 proceedings [3] 1/18 112/18 113/5 process [33] 13/8 19/13 20/18 27/25 29/3 29/5 29/7 32/11 43/3 47/1 48/21 51/4 52/21 58/13 58/13 59/21 71/6 79/18 86/19 87/16 87/21 87/24 89/5 90/4 92/2 92/5 96/22 97/21 98/2 100/13 101/1 104/17 106/9 productive [2] 57/15 87/21 productivity [2] 57/3 57/7 professional [2] 91/6 112/4 profit [1] 1/3 programmatic [27] 12/18 13/11 13/21 13/24 14/19 15/6 15/24 29/5 77/4 77/6 77/7 77/20 77/25 79/1 79/6 94/8 94/18 94/25 98/14 99/19 99/25 107/13 107/14 107/20 108/7 108/13 109/17 prohibit [1] 16/25 prohibits [3] 18/7 19/20 101/19 project [149] project's [4] 6/11 11/23 15/13 17/24 projected [2] 42/4 68/3 projects [31] 10/21 10/24 12/24 13/8 13/12 13/25 14/25 15/19 19/4 19/20 21/6 21/19 26/24 29/2 29/8 29/14 42/21 45/19 45/24 45/24 46/1 63/17 74/7 75/25 94/9 94/12 99/1 103/8 105/15 105/15 112/3 promises [1] 10/22 prone [1] 22/2 pronounce [2] 93/22 93/23 pronunciation [1] 82/5 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 127 of 134 P proper [1] 32/24 properly [3] 24/14 24/15 85/11 properties [1] 25/15 proponent [1] 87/24 proportional [1] 83/12 proposal [6] 27/24 40/16 46/12 47/10 75/4 75/11 proposals [1] 47/7 propose [2] 27/4 27/6 proposed [6] 13/4 22/7 22/15 40/14 40/17 109/10 proposition [1] 97/16 protect [8] 15/3 20/19 28/5 59/7 65/3 81/16 110/6 110/8 protected [5] 11/2 22/3 33/4 36/25 87/25 protecting [4] 31/7 31/10 81/8 85/8 protection [4] 20/22 36/9 60/12 93/8 protections [11] 30/20 32/12 32/25 33/2 51/17 53/12 53/14 58/1 58/17 59/2 100/10 protective [5] 58/4 65/23 67/14 87/12 111/23 proud [1] 85/4 provide [16] 4/6 18/11 27/10 27/11 27/15 31/6 35/7 38/14 39/14 39/17 40/2 92/23 93/11 105/3 105/4 111/11 provided [3] 105/2 108/12 108/22 provides [4] 33/3 33/5 96/15 111/23 providing [5] 10/15 34/17 35/7 39/9 39/15 provision [2] 73/15 74/20 provisions [3] 73/8 73/14 111/18 prudent [3] 13/1 94/10 95/10 public [27] 6/6 9/5 10/5 10/11 12/2 27/14 28/24 29/3 29/8 29/15 31/19 32/13 33/1 49/1 50/13 52/23 58/5 58/6 58/6 60/6 72/5 85/6 85/12 89/24 96/21 99/12 99/24 public's [2] 21/14 96/20 publicly [1] 59/3 pull [2] 34/25 40/9 punch [1] 39/19 punting [1] 92/4 purport [1] 77/10 purporting [1] 78/22 purpose [4] 21/20 38/14 81/8 106/16 pursuant [2] 14/14 29/9 pursuing [1] 49/7 push [2] 35/3 49/4 put [15] 4/20 25/11 35/1 35/9 37/23 50/5 52/9 53/14 57/24 72/8 80/22 81/10 90/13 97/6 106/2 putting [4] 25/5 36/20 38/7 80/5 Q qualitative [2] 66/16 66/21 quality [9] 17/5 48/10 56/21 56/24 57/14 85/8 93/8 93/10 109/10 quantitative [3] 66/16 66/21 83/7 quantity [2] 56/22 56/24 queens [4] 32/7 51/24 72/10 100/21 question [10] 26/20 26/22 34/15 81/24 93/1 97/4 103/16 104/24 105/6 108/19 questionable [1] 19/6 questions [19] 5/22 16/7 20/17 20/20 33/23 53/17 58/25 61/3 78/16 78/19 84/5 84/10 84/14 90/7 103/13 103/19 110/16 110/19 112/13 quick [3] 16/20 46/11 96/14 quickly [8] 10/15 61/25 64/20 69/3 73/13 81/24 91/12 107/5 quite [7] 18/4 19/22 48/6 54/24 55/8 55/25 69/23 quo [2] 10/24 15/18 quote [3] 9/11 11/4 14/12 R raise [1] 69/3 raised [4] 34/4 42/1 71/24 90/17 ramifications [1] 46/25 ramping [1] 110/17 range [6] 6/19 61/14 67/18 90/22 90/25 101/25 Ranger [3] 36/3 42/13 65/2 rapid [1] 31/1 rather [5] 10/24 14/24 18/1 32/8 61/25 rational [4] 53/15 60/1 72/10 108/22 rationale [2] 52/12 71/3 rationally [2] 83/6 106/14 re [1] 59/12 re-initiation [1] 59/12 reach [7] 27/5 27/7 28/19 29/24 56/1 77/20 108/4 reached [5] 4/5 47/22 53/2 68/12 71/10 reaches [1] 71/14 reaching [1] 29/19 read [6] 3/24 11/4 78/14 80/17 110/4 112/12 reading [3] 16/3 109/17 110/15 reads [1] 108/11 reaffirmed [1] 79/15 real [1] 86/4 reality [3] 66/14 69/10 75/1 realize [2] 59/16 109/4 realized [7] 25/11 55/1 55/9 55/12 55/14 59/24 60/23 really [42] 12/7 16/20 18/12 19/1 20/25 21/16 24/4 26/20 27/21 28/24 29/20 31/21 32/1 35/9 38/11 43/6 44/12 46/1 50/1 56/16 58/13 59/15 60/18 68/5 86/7 87/11 91/24 92/6 94/2 95/15 96/5 96/14 96/15 97/5 97/17 99/9 99/13 100/12 101/21 104/6 106/16 111/6 realm [1] 43/11 realter [1] 27/24 rearing [3] 56/21 56/23 104/3 reason [10] 31/15 38/7 38/22 78/20 79/10 87/20 92/20 93/1 110/20 111/4 reasonable [4] 13/1 85/22 94/10 95/10 reasonably [2] 66/19 105/15 reasoned [1] 44/21 reasons [3] 6/20 26/25 76/13 rebuttal [5] 4/8 4/13 34/1 106/20 107/6 receive [1] 16/24 received [2] 29/3 106/17 recent [2] 80/15 88/4 recently [2] 35/23 79/15 recitation [1] 44/1 recited [1] 47/14 recognize [3] 27/21 94/19 101/18 recognized [1] 60/6 recognizing [1] 102/13 recommend [1] 31/10 recommendation [1] 53/6 recommendations [3] 51/9 51/11 71/25 recommended [1] 72/17 reconcile [2] 57/17 80/17 record [43] 3/6 12/21 17/18 18/11 18/23 23/13 23/16 30/25 34/10 47/5 50/24 52/25 55/2 56/25 57/16 62/21 64/2 72/2 72/18 74/24 75/15 75/19 75/19 82/2 85/4 86/24 89/5 91/2 91/4 91/9 91/10 93/12 94/5 94/15 94/17 95/9 95/16 96/7 101/5 108/1 109/16 112/1 113/5 recourse [1] 111/3 recovery [2] 20/13 33/6 recreating [1] 85/12 recreation [7] 23/15 23/22 23/25 36/6 85/5 89/25 102/19 recreational [7] 25/8 26/8 39/9 39/12 39/14 85/23 86/3 recurrent [1] 62/15 red [3] 23/13 23/14 23/20 Redden [5] 13/19 14/11 14/23 76/19 78/15 Redden's [1] 80/18 redo [1] 70/17 redress [1] 65/2 redressed [1] 43/2 reduce [2] 18/18 42/20 reduced [1] 73/24 reduction [2] 43/23 44/2 reengineering [1] 19/7 reevaluated [1] 64/8 refer [1] 16/11 reference [2] 61/12 107/14 referred [2] 34/18 65/6 referring [1] 45/8 reformat [1] 94/24 refused [1] 101/10 regard [6] 5/19 19/23 95/13 97/2 100/5 100/17 regarding [8] 5/13 14/20 16/13 20/20 59/7 84/10 87/11 105/19 regime [3] 17/8 75/25 81/4 regimes [1] 81/10 region [1] 85/12 regulate [1] 17/1 regulation [3] 79/13 79/20 108/20 regulations [1] 54/13 rejected [2] 9/20 109/19 relate [2] 5/6 34/10 related [2] 47/8 83/25 relates [3] 40/12 44/12 61/22 relating [1] 72/25 relationship [1] 29/12 relative [1] 22/21 relatively [1] 23/10 released [3] 6/10 13/21 14/3 relevance [1] 14/13 relevant [3] 10/15 63/20 73/8 reliable [1] 84/11 reliance [2] 44/20 109/16 relied [4] 60/13 63/16 67/24 76/12 relief [1] 27/11 relies [2] 76/9 82/20 relooked [1] 59/1 rely [8] 17/14 74/21 77/15 83/5 83/21 108/15 110/9 111/14 relying [4] 22/10 78/5 78/6 92/4 remaining [5] 5/20 31/7 33/23 61/4 61/6 remand [5] 15/10 27/14 27/24 28/10 29/22 remanded [1] 29/25 remanding [1] 27/9 remedying [1] 15/10 remember [3] 38/19 78/12 81/1 remind [1] 62/13 remiss [1] 92/12 render [2] 64/19 78/18 rendering [1] 76/23 renounce [1] 109/22 reopen [2] 50/13 59/21 reopening [3] 51/4 53/16 106/15 repeat [1] 85/20 replaced [1] 95/3 replete [2] 18/23 64/3 reply [7] 6/3 11/20 16/16 30/7 50/15 53/21 55/6 report [4] 6/14 59/8 87/18 101/5 reported [1] 61/11 reporter [3] 2/17 84/7 113/11 reports [1] 88/25 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 128 of 134 R represent [2] 3/6 29/11 represented [1] 10/5 representing [3] 3/16 3/23 85/3 represents [2] 47/14 90/21 reprise [3] 12/5 95/24 97/18 request [2] 38/23 64/23 require [10] 25/12 30/9 33/10 46/22 66/3 73/1 79/2 94/11 95/10 99/1 required [21] 12/9 13/17 15/12 32/17 47/24 50/13 51/5 51/23 51/24 55/21 60/3 61/23 72/17 77/2 78/2 79/12 79/19 94/24 96/3 110/11 111/21 requirement [4] 13/9 15/14 52/9 92/9 requirements [8] 41/25 42/2 51/21 57/24 65/23 80/5 83/8 99/12 requires [6] 17/4 19/10 33/20 65/13 73/18 99/8 requiring [2] 11/2 17/7 requisite [1] 31/22 rerouted [2] 52/11 75/1 rerouting [1] 52/13 research [3] 91/6 111/16 112/3 reserve [1] 4/12 reserves [7] 16/23 17/2 36/22 36/24 37/2 40/24 75/2 resolution [1] 77/8 resolve [5] 20/11 27/7 29/12 29/18 71/2 resolved [5] 20/4 20/21 21/3 101/12 101/12 resolving [1] 28/11 resort [1] 45/20 resoundingly [1] 109/18 resource [5] 33/1 33/5 38/25 100/23 111/18 resources [7] 11/7 16/24 69/24 85/9 92/14 105/12 105/14 respect [36] 4/25 5/10 10/16 12/4 19/23 28/8 28/23 37/18 37/22 37/24 44/7 44/21 62/2 65/18 65/19 72/23 73/18 73/23 73/25 74/19 75/18 76/19 77/17 82/22 92/11 93/14 101/4 101/15 102/10 102/22 103/4 103/4 107/10 107/11 109/19 111/12 respected [1] 112/8 respective [2] 7/7 27/9 respects [2] 81/15 90/14 respond [5] 4/7 16/10 66/17 93/19 110/22 responded [3] 51/8 52/24 106/17 response [9] 10/1 26/6 38/20 71/23 87/1 87/13 92/23 100/11 105/3 responses [1] 10/1 responsibilities [1] 62/25 responsibility [2] 44/21 81/1 rest [4] 5/23 33/24 34/20 44/24 restart [1] 58/17 restate [1] 58/17 restaurants [1] 25/10 restoration [44] 7/5 9/12 10/16 10/18 10/20 10/23 10/25 11/12 17/14 17/16 17/25 18/6 18/8 18/18 19/1 19/4 19/7 19/10 19/19 19/21 20/20 20/22 26/23 26/24 28/5 42/6 42/11 42/21 43/23 62/19 64/21 65/9 65/15 68/8 68/13 74/5 74/7 74/21 75/13 75/24 76/2 103/7 103/9 111/9 restore [11] 16/21 17/5 17/8 17/10 21/8 21/8 21/18 22/4 22/8 42/18 102/24 restore-and-maintain [2] 21/8 22/8 restored [1] 74/1 restoring [1] 85/4 restricted [1] 31/2 restructure [1] 27/25 result [14] 6/7 11/9 28/14 36/16 36/20 37/6 37/19 40/22 41/22 42/15 48/20 63/24 64/13 81/17 resulted [1] 48/4 results [1] 87/25 resume [1] 82/16 resurface [1] 42/19 return [1] 29/17 returns [1] 96/11 revenue [1] 39/16 reversal [2] 29/20 41/6 reversals [1] 41/5 reversed [1] 80/3 review [24] 32/1 34/17 48/14 48/21 49/3 51/2 51/13 53/22 54/2 54/8 54/18 62/2 62/7 71/17 72/7 73/6 97/24 98/14 98/18 99/11 99/18 99/19 99/25 101/25 reviewed [1] 99/4 reviewing [1] 79/17 reviews [1] 32/15 revised [2] 28/15 40/17 rider [2] 41/6 41/10 riders [1] 38/14 Ridge [1] 26/7 right [50] 5/24 5/25 7/16 8/25 17/12 18/12 20/6 20/15 21/11 21/15 22/15 25/5 25/23 26/15 34/12 35/15 38/12 38/17 40/11 47/3 49/2 49/3 49/6 49/12 49/13 49/14 58/14 59/5 59/9 59/13 59/13 69/7 69/13 71/8 72/16 76/4 85/11 91/3 91/5 93/7 94/22 95/14 104/3 104/7 104/13 104/14 105/7 105/7 106/9 112/16 rights [1] 97/21 riparian [15] 5/7 11/7 16/23 16/24 17/2 17/6 22/2 36/22 36/24 37/2 37/5 40/24 75/2 81/16 110/9 riparian-dependent [2] 11/7 16/24 rise [1] 60/17 risk [11] 10/25 11/2 11/8 11/9 15/16 21/1 21/2 24/16 32/5 32/5 32/6 risks [4] 32/10 33/13 33/19 100/20 River [13] 5/7 6/8 18/17 28/2 28/8 37/9 44/4 54/1 57/2 58/11 59/25 72/23 106/22 RLK [19] 1/9 3/23 41/3 45/19 46/20 48/14 49/3 66/8 68/11 69/15 84/22 85/3 85/10 87/24 89/18 90/1 91/15 92/7 92/20 RLK's [2] 45/14 97/19 RMR [2] 2/17 113/10 road [7] 5/4 26/12 42/12 85/25 86/1 88/9 96/15 road-like [1] 26/12 roads [7] 21/13 25/10 42/17 42/19 73/25 88/15 88/16 Robert [1] 2/13 robust [4] 11/24 49/9 58/24 98/17 rock [1] 41/15 Rockies [1] 8/12 role [3] 10/16 14/13 75/18 rolling [1] 41/14 room [3] 2/18 20/13 68/18 Roosevelt [1] 39/8 round [2] 27/13 89/25 routes [1] 17/22 Routine [1] 41/17 routinely [1] 29/21 RPM [1] 13/4 rule [3] 80/10 87/20 95/24 ruling [3] 13/14 78/13 78/22 run [3] 36/7 61/24 93/9 S S.W [3] 2/5 2/10 2/18 safeguards [2] 72/14 92/17 said [22] 4/16 6/15 10/1 14/11 23/12 29/17 37/20 39/13 43/20 45/17 51/19 55/20 63/18 70/10 72/2 75/12 76/25 78/4 78/21 87/23 94/5 103/7 sake [1] 24/17 sale [7] 9/4 67/13 67/15 67/16 67/17 67/17 67/20 Salmon [2] 18/17 44/4 salvage [3] 67/13 67/15 67/20 same [14] 8/9 9/9 9/24 13/20 14/6 15/5 38/18 41/11 42/11 43/2 59/3 64/4 65/18 67/8 sanctuary [1] 31/9 Sandy [2] 26/7 28/1 satisfy [1] 37/23 say [19] 4/17 7/13 12/2 20/12 25/14 46/1 48/19 62/3 65/8 69/5 69/22 76/21 77/24 78/4 79/16 80/1 92/11 92/12 94/15 saying [7] 33/9 33/11 58/24 102/4 102/6 102/16 109/2 says [6] 9/11 20/18 77/19 78/15 100/18 100/22 scale [15] 35/8 35/9 77/8 77/10 77/20 77/21 78/1 78/6 79/4 79/6 79/7 90/19 102/17 107/23 108/17 scenario [1] 30/8 scientific [3] 18/23 32/13 60/7 scoffed [1] 112/4 scope [8] 6/18 12/1 25/17 32/22 32/22 53/13 64/12 100/7 screen [4] 22/11 22/24 45/16 46/12 screens [1] 3/21 scrutiny [1] 71/15 Sean [3] 2/9 3/17 34/8 season [4] 51/23 86/13 92/8 104/20 seasonal [1] 39/18 seasons [3] 39/10 39/16 49/9 second [9] 5/18 6/25 30/12 44/12 45/21 51/7 54/3 93/12 98/10 secondly [3] 45/6 51/24 78/12 Section [5] 8/13 12/9 15/12 93/9 101/18 sediment [10] 9/14 17/8 18/16 18/19 41/12 41/14 41/18 42/18 43/24 83/13 sedimentation [22] 17/21 42/25 43/1 44/2 44/15 56/10 64/12 65/3 65/14 65/16 65/23 66/10 67/2 67/15 67/19 68/2 73/19 73/23 75/25 99/16 110/7 111/12 sediments [2] 7/23 86/2 see [24] 3/25 13/3 17/10 19/15 22/14 22/16 23/1 23/2 23/5 24/1 35/1 35/8 35/12 35/13 36/3 45/21 46/12 47/12 56/7 62/24 81/11 82/23 89/8 100/12 seeking [1] 64/24 seemed [1] 46/16 seep [1] 75/9 seepage [1] 75/9 segments [2] 48/20 75/7 selected [1] 97/7 seminal [1] 70/9 send [1] 71/2 sense [4] 55/23 71/3 81/10 106/15 sensitive [11] 5/7 17/22 22/16 30/11 30/22 30/25 33/4 33/7 33/16 41/19 71/9 separate [2] 30/9 105/24 serious [2] 51/2 78/15 seriously [8] 6/24 8/4 50/22 51/3 52/24 53/11 72/12 91/24 serve [5] 21/23 85/6 85/11 89/24 106/16 Service [164] Service's [24] 5/10 6/25 7/4 7/8 8/3 11/17 16/14 18/2 18/3 18/5 18/25 31/13 31/14 46/20 46/21 73/5 73/10 82/21 96/1 97/19 97/22 98/6 100/11 107/17 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 129 of 134 S services [1] 24/20 set [8] 3/2 4/14 21/8 29/22 36/12 44/24 58/20 62/12 sets [2] 17/10 107/3 setting [2] 88/19 104/4 seven [1] 42/18 several [1] 71/21 severe [2] 102/7 106/22 shall [2] 33/4 74/20 shape [1] 109/21 shared [1] 8/14 Sheila [1] 2/21 shifted [1] 11/9 short [3] 18/16 56/11 73/21 short-term [2] 18/16 73/21 shorter [1] 51/23 shorthand [1] 45/9 shortly [1] 112/15 shot [1] 31/21 should [23] 21/24 21/25 22/6 32/11 40/2 42/21 43/8 44/10 69/25 71/14 76/12 79/21 81/22 96/21 97/9 99/12 100/9 101/1 108/9 109/1 109/18 110/4 112/7 should be [1] 69/25 show [2] 23/10 52/25 showed [1] 59/24 shows [1] 40/14 Shumway [3] 2/17 113/9 113/10 shutting [1] 66/5 side [1] 44/5 sides [1] 100/19 Sierra [1] 3/9 sight [1] 85/25 sightings [1] 31/6 signature [2] 113/7 113/7 significance [17] 29/4 31/16 31/20 32/8 32/16 32/17 40/11 42/9 60/10 60/18 60/20 61/22 62/20 62/22 87/12 89/3 107/3 significant [27] 9/2 10/11 10/19 19/15 30/23 31/25 33/10 33/11 33/19 44/5 59/20 62/9 62/10 62/17 63/17 63/22 63/25 65/19 67/1 72/22 73/1 73/24 75/12 88/4 100/20 103/6 112/7 significantly [1] 18/15 signifies [1] 99/10 signing [1] 113/4 similar [6] 58/3 67/9 67/14 80/12 83/8 93/2 similarly [1] 47/13 simple [1] 44/16 simplest [1] 20/4 simplify [1] 29/21 simply [13] 15/9 15/18 15/25 18/22 29/18 42/8 58/17 64/13 65/8 66/24 86/17 110/1 111/21 since [6] 4/18 27/13 27/23 39/7 46/2 86/6 single [1] 29/22 SIR [4] 9/3 9/18 31/21 100/8 site [39] 12/24 13/12 13/25 14/2 14/3 14/25 15/1 15/7 15/8 15/14 15/24 16/17 17/1 17/11 26/13 26/20 29/8 51/13 77/4 77/10 77/21 78/1 78/6 79/3 79/7 85/5 94/9 94/12 94/17 96/23 99/14 99/17 102/1 102/12 102/17 107/21 107/23 108/2 108/17 site-specific [35] 12/24 13/12 13/25 14/2 14/3 14/25 15/1 15/7 15/8 15/14 15/24 16/17 17/1 17/11 26/13 26/20 29/8 77/4 77/10 77/21 78/1 78/6 79/3 79/7 94/9 94/12 96/23 99/14 99/17 102/1 102/12 102/17 107/21 107/23 108/2 sites [7] 31/3 31/9 32/6 42/19 56/20 56/21 74/2 sitting [1] 104/24 situation [23] 8/9 9/9 9/24 15/5 17/19 47/13 57/19 58/23 63/9 63/19 65/10 65/16 66/11 69/11 70/7 71/7 74/11 74/14 76/13 78/7 78/21 79/9 97/21 situations [5] 66/17 76/21 84/2 108/15 108/17 six [3] 20/14 33/22 66/7 size [6] 22/20 35/20 35/23 36/11 36/15 48/9 ski [13] 21/12 25/7 35/14 36/12 39/11 39/14 40/2 46/5 46/8 47/16 47/23 85/24 89/20 Skibowl [2] 26/7 37/25 skiers [1] 85/7 skiing [1] 89/25 skills [2] 38/7 38/12 slow [1] 41/6 slows [1] 41/10 small [8] 19/11 19/12 23/10 23/24 40/6 57/9 57/11 86/15 smaller [1] 24/21 snow [7] 25/25 26/1 49/5 49/6 49/11 49/17 49/18 so [186] Societies [1] 28/2 Society [9] 31/5 51/9 51/12 52/24 71/19 71/22 87/14 100/12 103/25 soil [3] 41/11 110/10 110/11 soils [2] 24/9 24/11 some [53] 3/21 4/13 4/19 4/20 10/15 18/24 20/6 20/17 24/13 24/22 34/19 35/7 35/11 36/21 37/25 42/20 43/22 45/19 49/18 53/24 54/19 55/18 57/5 61/25 64/8 64/10 65/22 70/15 70/17 71/2 71/3 71/13 71/14 71/25 73/21 74/7 75/13 76/7 80/11 84/22 86/2 87/12 87/13 88/9 88/14 89/17 89/18 90/16 91/22 97/9 100/23 108/15 109/17 somebody [3] 20/3 103/16 112/5 somehow [6] 62/15 75/10 109/14 109/24 110/4 111/24 someplace [1] 89/19 something [11] 8/3 25/3 25/17 39/25 46/12 46/13 54/20 59/20 61/8 84/18 112/14 somewhat [2] 74/4 74/22 sorry [1] 73/17 sort [11] 45/3 45/12 45/18 46/11 46/15 48/25 54/19 61/14 68/15 106/2 112/13 sounds [4] 4/10 34/14 34/15 69/23 source [1] 17/20 sources [2] 43/1 65/3 space [1] 26/2 span [1] 24/7 spatially [1] 56/8 spawning [2] 56/20 56/23 speak [3] 21/2 84/7 91/25 special [9] 36/14 36/19 38/20 38/21 43/10 63/6 64/23 97/1 98/7 specialists [1] 87/14 species [57] 6/9 6/13 7/10 7/12 7/14 7/15 7/21 8/2 10/3 10/7 10/9 11/25 13/3 13/23 15/3 15/13 15/17 30/11 30/17 30/22 30/22 30/25 31/1 31/5 31/9 31/19 33/4 33/7 33/17 55/11 56/1 56/20 60/14 60/19 69/20 71/9 77/12 81/8 81/9 81/13 83/4 87/3 88/22 88/22 101/14 101/19 101/19 101/21 101/24 102/2 102/4 104/2 104/5 106/24 108/21 109/16 109/23 species' [1] 7/6 specific [52] 5/22 12/24 13/1 13/12 13/25 14/2 14/3 14/17 14/25 15/1 15/1 15/7 15/8 15/14 15/24 15/25 16/6 16/17 17/1 17/11 26/13 26/20 29/8 33/2 47/7 47/16 51/21 58/9 77/4 77/10 77/21 78/1 78/6 79/3 79/7 94/6 94/9 94/12 96/23 97/7 99/14 99/16 99/17 100/15 102/1 102/11 102/12 102/17 107/21 107/23 108/2 112/13 specifically [15] 11/16 17/15 18/24 27/6 28/14 31/6 39/25 64/11 72/9 79/19 90/8 94/11 96/6 111/1 112/1 speculation [1] 111/25 speculative [2] 11/12 20/20 speed [1] 104/4 spend [1] 90/8 spent [3] 33/22 73/16 76/6 split [1] 80/16 Sporting [1] 32/18 spotted [3] 8/22 60/15 88/22 square [2] 36/11 96/24 stabilize [1] 42/17 stage [3] 29/5 99/2 99/2 stages [2] 9/25 99/18 stakeholders [2] 28/1 28/3 stand [1] 89/13 standard [15] 10/18 17/11 17/12 17/13 21/8 22/8 50/17 50/20 62/2 62/7 62/12 74/12 102/23 102/24 111/13 standards [12] 13/5 15/22 16/25 48/11 61/16 65/7 95/7 95/8 102/14 102/19 102/21 102/21 standing [1] 105/2 start [11] 5/9 35/6 35/19 45/8 57/22 60/3 61/21 76/5 82/11 95/20 95/20 starting [1] 86/7 starts [1] 104/20 state [5] 3/5 46/6 47/9 93/3 93/10 stated [2] 28/15 89/11 statement [5] 5/11 7/24 9/15 102/8 107/19 states [7] 1/1 1/20 2/10 2/17 17/15 18/14 53/15 stating [3] 9/20 13/4 46/21 status [3] 10/24 15/18 30/11 statute [3] 63/19 79/12 79/20 statutes [2] 89/6 107/3 statutory [1] 43/14 stay [2] 42/4 94/2 steelhead [22] 5/6 5/7 6/8 9/13 12/20 13/8 15/17 28/8 37/10 44/15 54/1 54/16 56/14 57/3 57/15 58/11 59/25 72/23 94/18 106/22 109/11 109/24 steep [1] 38/2 steep-pitched [1] 38/2 step [10] 12/9 59/6 63/4 96/22 98/10 99/4 99/13 99/19 99/25 101/10 Stephen [1] 2/9 steps [3] 19/11 19/12 98/5 Steve [1] 3/15 Stevens [2] 47/8 47/17 steward [2] 85/13 92/21 stewards [1] 92/13 sticks [1] 49/19 Stiefel [25] 2/4 3/8 4/12 34/18 36/13 42/1 42/7 48/2 51/19 61/23 65/6 73/4 76/6 76/9 83/20 84/24 87/22 89/16 93/20 93/23 107/6 107/8 107/19 108/8 110/3 Stiefel's [1] 37/18 still [8] 18/16 24/4 44/3 49/16 64/17 73/25 83/13 84/23 stockpiled [1] 110/11 stop [2] 69/18 82/11 story [1] 95/11 straightforward [2] 6/4 19/14 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 130 of 134 S strategy [23] 5/14 10/17 11/10 12/11 12/25 16/14 17/3 20/9 20/18 21/17 22/5 76/23 77/2 77/9 78/18 79/3 80/21 95/2 102/23 107/12 107/16 107/24 108/4 stream [5] 27/22 82/3 87/22 96/9 99/15 streaming [1] 41/21 streamline [2] 5/2 29/20 streams [4] 24/6 42/18 67/19 106/2 Street [2] 2/5 2/14 strict [1] 13/10 strike [1] 34/11 strong [1] 16/4 strongly [1] 89/21 structural [1] 18/20 structure [1] 27/16 structured [1] 83/11 stuck [2] 70/22 87/24 studied [1] 98/3 studies [3] 18/23 30/24 67/7 study [5] 31/8 67/11 69/19 103/20 103/23 stuff [2] 20/16 89/14 subject [2] 24/13 97/23 submit [2] 19/4 92/24 submitted [2] 75/11 108/1 substance [2] 15/11 54/6 substantial [1] 7/3 substantially [1] 87/1 substantive [1] 64/14 substitute [1] 17/16 substituting [3] 11/11 18/8 103/9 substitutionary [1] 76/3 subwatersheds [2] 44/3 65/17 successful [2] 19/11 38/3 such [6] 32/1 32/12 40/3 80/7 90/3 111/20 sufficient [2] 56/21 67/25 sufficiently [1] 84/11 suggest [2] 29/18 110/3 suggested [2] 79/1 89/16 suggesting [2] 42/7 109/8 suggestion [1] 27/4 suggestions [1] 100/15 suite [7] 2/5 2/10 2/14 18/17 99/3 100/10 111/22 sum [1] 15/21 summary [1] 50/15 summed [1] 18/13 summer [6] 25/7 39/14 86/6 86/7 86/13 89/22 summer-early [1] 86/13 summers [1] 101/3 SUP [2] 97/19 99/21 Supervisor [1] 1/7 SUPP [4] 17/18 22/3 76/11 93/12 supplement [8] 10/10 31/14 32/17 51/7 54/3 69/22 88/25 102/9 supplemental [18] 5/9 5/18 5/18 6/2 6/4 6/14 8/10 27/10 30/3 32/23 45/5 50/9 50/9 50/18 50/19 53/18 68/16 100/3 supplementation [6] 30/9 33/10 33/20 73/1 87/5 87/7 supplementing [1] 87/9 supply [2] 36/9 65/3 support [8] 17/6 39/13 39/19 63/21 67/25 75/20 86/23 89/12 supportable [1] 95/15 supported [2] 39/13 44/22 supports [1] 62/21 Supreme [4] 70/10 79/14 87/6 87/7 sure [8] 34/23 42/3 49/19 61/9 70/5 85/19 91/4 92/15 surgery [7] 19/5 19/6 19/10 19/17 19/22 20/1 42/1 surprised [1] 29/13 surrogate [2] 15/25 83/9 surrogates [3] 83/2 83/6 84/12 surrounding [1] 85/12 survey [4] 31/5 43/19 80/3 101/8 surveys [6] 51/25 100/15 104/9 104/12 104/14 105/24 suspended [2] 7/22 96/10 suspension [3] 66/2 66/3 96/3 sustained [1] 108/22 sweep [1] 30/19 swimming [1] 46/9 system [5] 20/24 21/1 40/23 46/10 110/8 systems [3] 36/10 66/18 80/24 T table [3] 3/19 28/3 35/2 take [45] 5/11 6/12 7/15 7/24 8/2 8/22 8/25 9/15 12/8 13/3 15/12 21/2 21/24 24/3 26/3 31/22 34/3 34/20 39/20 48/5 48/20 59/15 60/15 60/17 61/15 68/23 70/2 71/16 72/15 83/2 83/9 83/12 84/13 84/20 92/14 101/10 101/19 102/8 105/10 105/16 106/19 107/2 109/21 112/10 112/16 taken [4] 18/10 54/20 73/20 83/5 takes [2] 17/1 70/2 taking [6] 42/12 43/14 64/8 89/17 90/11 91/24 talk [6] 5/5 45/4 68/7 68/21 68/22 82/19 talked [3] 38/11 39/9 39/22 talking [10] 6/1 23/18 24/10 27/1 35/10 40/6 52/5 57/22 60/23 63/5 talks [4] 74/11 74/20 82/3 87/8 target [1] 31/21 technically [2] 59/13 59/16 teeth [1] 58/3 tell [5] 48/17 57/21 66/9 90/19 97/14 telling [1] 97/8 temporally [1] 56/8 temporary [2] 88/9 88/16 tennis [1] 46/8 tension [1] 4/19 tentative [1] 78/13 Tenth [1] 48/1 term [9] 13/7 14/17 18/16 18/16 29/16 47/15 56/11 56/11 73/21 terms [29] 4/1 13/1 13/10 15/1 23/17 31/20 34/6 43/17 47/15 47/23 54/7 57/25 58/2 60/20 69/3 77/10 83/18 84/12 86/1 87/21 88/1 89/6 89/16 89/24 90/13 93/15 94/10 95/9 107/3 terrain [1] 38/5 than [17] 6/24 10/24 15/22 28/16 32/8 36/18 37/5 39/4 40/25 41/17 56/14 66/3 67/21 68/2 80/15 81/15 86/19 thank [19] 4/4 4/23 4/24 16/12 34/2 34/4 34/5 45/2 50/7 61/6 61/19 70/19 72/20 84/16 90/17 93/18 103/13 112/9 112/10 Thanks [1] 23/4 that [773] that's [100] 4/9 4/18 5/16 7/17 7/24 8/4 8/6 8/7 8/11 9/8 9/10 9/15 12/7 12/12 13/13 13/19 14/9 15/4 17/19 20/7 20/16 21/4 21/16 22/3 24/4 25/5 25/15 25/17 25/18 26/11 26/23 28/23 29/23 32/4 34/24 35/5 36/22 38/7 41/11 45/15 46/13 48/23 49/2 49/13 56/3 57/12 57/16 59/9 60/19 68/10 68/15 68/17 72/3 72/16 74/2 76/5 78/5 78/7 78/13 78/23 79/9 79/10 80/8 80/13 82/15 84/14 84/21 85/6 85/8 86/14 86/14 87/6 87/8 87/25 89/5 89/19 90/1 90/5 91/6 92/12 92/19 94/13 95/11 96/12 96/22 97/11 97/11 99/4 99/9 99/11 100/8 101/17 101/25 102/8 103/8 103/10 103/12 105/13 105/14 110/21 their [19] 18/6 21/15 38/10 39/17 47/18 53/2 55/20 55/21 58/25 62/12 63/21 65/20 65/20 66/21 75/18 77/22 86/23 101/6 106/20 them [14] 15/9 16/9 24/20 34/12 56/16 63/23 66/8 68/21 75/11 75/22 87/12 94/7 104/21 106/12 theme [3] 8/15 16/7 62/15 themselves [5] 39/23 43/4 62/18 63/11 74/8 then [30] 4/7 4/12 5/13 10/8 20/10 22/6 34/20 36/12 38/23 39/11 43/21 45/5 48/19 49/5 56/5 56/5 71/5 75/23 76/19 78/5 79/8 79/21 82/7 83/14 98/10 102/5 103/6 106/8 111/17 111/17 there [116] there is [1] 25/1 there would [1] 57/11 there's [65] 4/19 8/6 16/6 19/14 20/1 23/10 23/23 30/14 33/13 36/21 41/10 41/14 42/10 44/18 55/19 55/20 55/25 56/2 56/16 57/9 59/15 60/9 61/12 61/13 62/21 62/22 65/1 65/22 66/3 70/21 71/13 72/1 74/6 75/12 80/6 80/16 81/9 83/17 86/4 86/21 87/7 87/14 89/9 89/18 91/13 91/22 93/14 94/1 95/14 96/16 96/24 97/9 98/23 99/19 100/2 101/16 103/6 104/9 104/17 104/19 104/19 107/20 109/6 111/7 111/21 thereby [1] 28/11 therefore [5] 62/18 66/19 67/22 73/10 109/5 these [70] 4/15 5/6 7/25 10/14 11/25 13/2 13/10 16/23 16/25 20/14 21/6 21/15 25/7 26/25 27/14 28/3 31/10 34/4 35/11 35/21 36/12 36/20 37/1 39/14 42/21 42/24 43/19 45/24 49/8 52/6 52/22 62/18 65/15 65/16 69/16 69/18 72/11 72/14 73/8 74/7 75/21 75/23 75/24 76/2 81/5 84/10 86/2 86/2 88/1 90/5 90/13 90/21 91/15 91/19 92/13 92/13 92/13 98/1 98/1 101/11 103/7 104/15 104/18 105/15 109/3 111/8 111/15 111/18 111/24 112/6 they [58] 8/10 21/2 21/24 22/9 24/22 29/13 30/23 32/16 39/3 41/4 41/6 41/11 44/10 44/11 48/20 49/16 49/16 51/19 55/22 56/3 56/4 58/3 58/4 58/24 59/3 59/14 63/1 63/17 64/22 64/24 65/11 65/13 65/17 66/17 66/22 69/7 69/8 69/13 69/14 74/6 75/2 81/7 81/17 82/4 84/9 84/12 85/19 86/1 89/13 89/24 92/1 94/14 94/15 94/17 98/22 99/23 102/23 112/2 they're [14] 33/9 38/7 55/21 56/3 58/11 72/16 72/17 81/15 83/6 86/3 86/3 104/18 104/20 110/6 they've [8] 24/19 24/21 24/21 58/11 58/14 97/7 98/21 105/19 thing [4] 64/4 69/13 69/23 87/5 things [11] 15/21 20/14 46/17 48/11 49/6 59/15 91/18 92/10 99/14 110/15 112/15 things: [1] 41/6 things: one [1] 41/6 think [87] 3/25 18/13 19/24 20/7 20/16 21/4 23/5 23/9 23/22 24/1 25/1 25/19 26/4 26/10 27/14 27/20 28/20 29/4 29/6 30/4 30/21 35/12 36/22 37/17 39/7 45/15 45/24 46/6 48/3 50/5 50/15 51/6 53/17 57/23 59/10 59/15 62/2 62/25 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 131 of 134 T think... [49] 63/3 66/11 69/25 70/3 70/8 70/9 70/13 71/6 72/3 72/23 74/4 76/12 77/17 78/23 78/24 80/25 81/21 83/20 88/24 94/3 94/4 94/19 95/11 95/14 95/18 96/12 96/14 97/9 97/16 97/18 98/5 98/12 98/21 99/9 99/24 100/8 101/15 101/17 103/2 103/24 104/9 105/5 105/9 106/6 109/2 110/15 110/17 110/20 110/20 thinning [1] 88/8 third [5] 2/10 2/18 30/15 35/20 52/9 thirds [1] 98/22 this [262] thorough [4] 43/16 63/2 109/6 109/12 thoroughly [2] 5/1 67/2 those [63] 5/23 6/18 8/9 8/25 12/5 19/12 20/17 22/1 24/22 25/25 26/8 30/22 33/23 34/13 34/16 38/1 40/24 41/21 42/4 43/22 44/23 45/1 46/1 47/16 48/11 52/24 56/22 58/11 58/12 58/14 58/15 59/23 60/2 60/7 63/15 64/10 68/13 71/19 71/23 71/25 73/7 78/19 79/16 81/9 81/16 83/22 83/23 84/2 87/15 89/4 90/15 91/13 91/20 95/8 95/17 99/17 100/25 104/4 105/15 106/11 110/25 111/2 111/4 though [5] 31/2 77/23 80/13 106/10 111/3 thought [4] 4/20 42/16 61/3 84/25 thoughts [1] 112/14 threats [4] 104/2 104/4 104/4 104/7 three [6] 5/5 27/23 30/8 45/21 51/21 76/13 threshold [5] 32/18 55/25 90/25 91/13 93/4 thresholds [4] 61/11 61/14 83/1 111/4 through [25] 6/3 6/3 9/13 11/19 11/20 12/21 16/15 16/16 17/22 30/6 30/6 39/16 42/12 43/3 47/11 48/21 49/4 51/22 54/9 61/24 81/19 90/3 93/2 104/8 104/11 throughout [3] 58/12 59/3 92/5 thus [2] 15/7 84/12 Tidwell [2] 28/14 80/8 tie [3] 87/10 108/13 108/14 tied [3] 10/18 93/8 94/6 ties [1] 81/18 timber [6] 9/4 14/21 67/13 67/20 86/1 88/13 timber-cutting [1] 86/1 timber-harvesting [1] 88/13 Timberline [28] 36/14 38/3 38/6 38/21 38/21 39/8 40/3 40/16 43/9 43/10 45/19 47/18 50/12 52/15 64/24 66/9 75/3 75/11 85/3 85/13 85/16 85/23 86/5 86/10 86/10 99/21 104/1 104/5 Timberline's [1] 96/25 time [39] 3/2 4/6 4/12 4/13 4/14 4/21 4/25 5/17 12/5 15/15 19/15 19/18 19/19 20/3 21/3 33/22 34/7 34/8 35/25 41/11 42/11 43/2 59/16 65/18 69/3 69/7 69/19 70/17 73/16 73/22 74/12 76/6 80/20 87/10 90/9 92/14 92/20 97/5 112/11 timelines [1] 10/19 times [1] 35/17 timing [3] 18/5 18/25 68/9 today [11] 5/3 5/5 5/17 6/22 12/5 22/10 27/1 29/11 61/21 69/6 94/4 told [2] 6/6 59/11 tonnage [1] 73/23 too [3] 21/2 38/8 104/10 took [12] 6/11 11/22 48/24 52/24 53/24 57/8 63/19 65/10 75/10 80/8 101/9 104/23 tool [1] 108/5 tooth [1] 83/25 top [3] 41/23 43/21 43/22 total [3] 18/19 40/16 40/21 touch [3] 5/17 30/2 73/13 toward [1] 85/16 tower [1] 96/7 Town [1] 86/10 trail [8] 40/22 41/13 41/16 52/7 75/2 75/7 86/10 111/10 trail 7 [1] 75/7 trailed [2] 84/6 84/7 trails [36] 9/12 21/13 22/22 23/6 26/12 35/24 36/20 37/1 37/7 37/7 38/1 38/2 39/23 40/14 40/16 40/18 40/19 41/16 41/18 41/20 43/4 43/20 52/6 52/10 52/19 62/18 69/16 75/2 75/4 75/7 75/8 75/21 86/2 86/3 100/17 104/18 trained [2] 52/1 104/15 trampling [1] 32/7 transcript [3] 1/18 113/5 113/6 traps [1] 41/15 treatment [1] 103/15 tree [1] 88/14 trees [3] 40/25 86/4 88/21 tremendous [1] 42/2 trends [1] 30/24 tried [4] 9/18 70/14 94/24 112/12 trigger [3] 54/19 60/10 106/8 triggered [2] 105/11 111/4 triggers [2] 59/13 97/13 trilogy [1] 94/23 TRO [1] 80/18 TRO/PI [1] 80/18 trout [2] 13/23 14/20 true [6] 20/7 69/8 87/11 87/25 102/20 107/13 truly [1] 88/23 try [7] 22/20 23/9 50/1 61/24 90/16 110/22 112/14 trying [11] 21/8 21/12 33/8 59/22 64/10 65/18 69/13 72/18 81/15 93/5 110/24 tubing [3] 45/25 47/19 48/16 tuned [1] 20/25 turbidity [24] 61/10 61/13 67/19 81/25 82/3 82/5 82/8 82/18 82/19 82/22 83/1 83/8 90/19 92/25 95/13 95/17 95/19 95/23 96/4 96/8 96/11 110/3 111/1 111/2 turn [7] 5/12 11/15 16/13 34/19 44/25 50/8 61/3 turning [2] 73/15 76/4 tweaking [1] 90/2 two [24] 5/20 6/21 8/22 10/13 41/5 43/7 44/3 44/23 45/5 49/12 50/8 50/9 66/20 67/3 68/19 69/2 83/21 95/13 98/5 98/22 101/3 104/23 107/3 107/3 two-thirds [1] 98/22 type [8] 22/23 23/7 23/24 30/18 32/11 36/7 88/23 100/25 types [2] 43/7 56/10 U U.S [4] 3/18 3/20 7/1 105/18 ultimately [1] 64/7 unanimously [1] 39/13 uncertainties [1] 20/17 uncertainty [3] 19/19 100/13 101/12 under [39] 10/22 11/9 13/13 14/14 16/14 17/8 20/3 27/2 34/13 36/25 42/8 53/8 54/8 55/1 55/9 55/17 55/20 55/21 55/21 56/1 59/16 59/19 59/20 62/20 62/25 65/19 68/1 71/11 73/2 77/11 81/4 81/8 86/4 89/6 93/11 107/2 109/3 109/22 112/10 underlying [2] 6/16 9/19 undermines [2] 18/24 99/24 underscores [1] 29/4 understand [11] 70/1 70/1 70/3 70/4 70/6 70/12 90/10 90/11 90/15 103/19 110/19 understanding [3] 25/23 47/6 75/15 understood [2] 48/24 104/22 undertake [2] 79/19 109/5 undertaking [1] 101/8 undertook [2] 29/7 31/5 unduly [1] 80/24 unfold [1] 66/22 unfolded [1] 27/21 unifying [1] 8/14 unique [2] 23/7 30/8 unit [2] 36/8 36/10 UNITED [5] 1/1 1/20 2/10 2/17 53/14 units [1] 82/6 unless [13] 16/6 33/23 34/14 36/8 53/17 61/2 81/18 81/22 84/5 84/14 90/7 100/2 103/12 unlike [1] 48/7 unlikely [1] 32/2 unreasonable [1] 98/11 until [6] 46/17 71/9 82/7 82/16 96/11 111/2 unwillingness [1] 111/8 up [37] 7/25 16/2 16/4 16/10 19/17 19/22 20/16 22/12 23/3 23/4 29/15 34/8 35/1 35/16 40/9 45/3 47/9 49/19 50/11 52/15 53/1 54/9 58/19 62/14 69/21 70/2 70/22 81/7 84/7 89/17 90/16 90/20 92/6 93/13 93/25 109/22 110/17 update [1] 85/22 upfront [2] 99/8 99/10 uphold [1] 80/12 upholding [1] 89/6 upholds [1] 80/7 upon [16] 13/25 43/13 63/16 66/21 74/21 76/9 76/12 78/5 78/6 82/20 83/5 83/21 91/6 108/15 110/9 111/14 upper [1] 75/6 upside [1] 44/5 us [6] 3/19 3/20 52/25 54/9 87/19 91/20 use [47] 15/23 17/16 20/9 21/25 23/10 25/9 25/24 35/3 36/1 36/8 36/14 36/19 38/20 38/21 38/22 39/6 40/1 40/3 40/7 41/4 41/14 41/18 42/1 43/8 43/10 43/18 43/18 44/8 53/7 63/6 64/23 71/11 80/1 80/7 80/12 86/5 86/6 86/7 86/9 88/7 92/16 95/21 95/24 96/20 97/1 98/7 99/15 used [11] 11/5 42/21 49/10 62/4 67/9 80/13 86/1 91/20 95/19 96/2 96/3 user [1] 21/13 users [1] 85/6 uses [5] 21/21 91/23 92/1 97/1 99/20 using [8] 15/22 18/7 19/20 20/22 22/19 23/23 78/1 90/12 usually [1] 4/15 utilization [1] 36/17 utilize [4] 25/7 41/7 63/1 108/6 utilized [2] 39/21 67/14 utilizing [2] 34/18 42/10 V vacate [1] 88/18 vacated [2] 29/24 95/4 Vacating [1] 27/8 Val [1] 2/21 valid [1] 72/3 Valley [2] 70/9 87/6 values [1] 33/5 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 132 of 134 V variability [1] 67/18 various [2] 53/12 104/2 vascular [1] 21/1 vegetation [1] 19/8 Vermont [1] 79/13 versus [2] 47/7 89/3 very [29] 4/4 4/24 16/12 19/5 35/12 37/5 37/14 38/11 44/9 55/25 57/9 57/11 58/9 63/2 64/3 75/20 79/16 83/25 85/4 85/22 89/21 91/23 103/13 104/21 106/20 108/23 109/6 109/9 111/10 viability [1] 30/22 vicinity [1] 73/22 view [8] 44/8 46/3 46/23 52/20 53/8 54/15 64/2 71/16 viewed [1] 46/2 views [3] 58/9 58/11 58/12 violate [1] 108/20 violated [2] 73/9 73/15 violates [1] 103/10 violation [4] 60/16 94/5 94/13 107/10 vision [4] 45/18 46/11 47/15 48/15 visitation [1] 86/12 visitors [2] 85/23 86/14 visual [1] 48/10 visually [1] 35/12 visuals [1] 3/21 voice [1] 39/12 voiced [1] 86/23 volcanic [1] 24/11 W wage [1] 39/19 wait [2] 25/2 72/2 walk [1] 54/9 wall [1] 35/2 want [24] 4/3 21/2 26/12 35/1 35/6 39/16 48/20 52/6 60/8 61/25 62/13 65/25 71/3 81/24 84/6 84/18 85/21 86/25 87/5 88/2 89/8 90/17 97/17 110/16 wanted [3] 16/9 46/7 94/2 wants [6] 38/6 38/22 48/15 48/15 85/10 110/3 warnings [1] 30/15 was [121] Washington [2] 47/10 95/5 wasn't [18] 46/16 47/18 47/19 47/19 51/5 53/2 53/9 54/4 54/13 54/14 54/24 55/8 55/13 58/18 60/16 71/8 71/8 78/22 waste [1] 98/24 watching [1] 82/11 water [14] 17/5 36/7 36/9 41/12 41/21 56/20 56/21 56/21 56/24 65/3 93/8 93/10 93/11 101/21 watershed [9] 18/18 22/2 24/6 28/2 44/3 44/4 65/2 67/8 67/13 watersheds [6] 16/22 17/22 21/18 24/12 65/14 76/1 waver [1] 20/6 way [30] 4/1 16/10 20/4 21/16 34/6 35/4 35/6 38/13 41/11 42/8 42/22 42/24 54/14 59/17 64/10 70/16 71/1 75/25 79/13 79/24 80/17 81/10 83/16 84/1 84/1 85/11 86/8 99/19 108/14 109/21 ways [1] 33/9 we [116] we'd [2] 4/12 34/7 we'll [3] 3/25 4/9 49/5 we're [25] 20/13 20/25 23/13 23/18 24/10 35/10 38/3 40/6 40/21 42/25 52/5 59/11 60/23 63/5 69/10 69/20 75/13 77/19 77/24 90/2 91/16 92/3 92/6 100/23 109/5 we've [6] 4/11 6/2 16/17 27/1 35/18 47/1 weather [2] 66/18 89/22 weigh [2] 28/6 84/17 weighed [1] 72/5 weighing [2] 32/24 33/2 well [46] 3/18 3/24 4/13 7/15 11/25 16/23 22/25 24/24 25/19 32/22 33/9 33/11 37/8 44/18 44/22 49/18 50/8 57/17 57/19 57/22 59/14 63/8 68/19 71/5 71/16 72/2 76/8 77/5 78/21 80/1 83/22 87/19 90/23 92/18 93/9 94/15 94/17 97/3 98/5 100/22 103/7 103/17 103/22 103/24 105/1 110/22 well-supported [1] 44/22 went [14] 6/11 8/24 11/22 22/24 35/11 43/2 47/11 59/1 71/21 93/2 94/23 100/7 103/25 104/8 were [41] 6/18 8/10 9/4 9/18 18/18 22/9 28/19 32/18 35/23 40/16 40/17 51/14 58/3 58/4 58/4 58/15 58/24 58/25 63/9 63/17 63/23 64/15 64/22 64/22 64/24 65/17 67/15 67/16 67/17 73/1 75/4 75/8 75/8 84/25 85/1 88/1 90/17 104/1 105/24 111/13 112/2 West [3] 2/14 18/17 44/4 western [19] 5/19 28/6 30/2 30/5 30/10 32/3 32/25 45/6 50/11 52/22 53/12 70/21 71/19 95/5 104/7 105/25 106/4 106/5 106/11 wetland [2] 17/6 75/9 wetlands [2] 63/12 63/16 what [72] 4/1 4/11 4/16 4/20 12/1 16/11 20/6 20/10 20/11 20/12 21/4 24/4 29/23 35/10 35/18 37/20 38/2 39/2 40/6 40/15 41/8 44/13 44/17 48/18 48/25 49/7 50/4 50/5 50/8 51/18 54/22 54/24 55/14 55/15 56/3 56/7 56/12 57/23 58/3 59/19 59/22 60/1 61/15 62/5 67/21 69/17 70/13 71/22 72/4 74/8 75/17 75/17 78/5 85/5 89/16 90/13 90/20 90/21 90/21 90/24 90/24 92/1 97/12 97/13 98/18 99/9 103/24 105/17 106/10 106/16 107/19 110/21 what the [1] 98/18 what's [7] 20/3 56/9 61/15 86/19 96/12 97/14 99/4 whatever [3] 92/24 98/24 111/4 whatsoever [5] 25/9 34/16 36/8 55/21 75/20 when [40] 20/6 20/8 20/10 21/11 35/13 39/8 40/15 44/18 54/11 54/15 55/7 56/10 59/19 60/22 63/5 66/3 66/13 70/7 71/14 75/3 83/2 86/8 87/4 87/18 89/10 89/25 91/25 94/6 96/23 97/14 100/13 100/15 100/15 101/11 103/1 104/20 105/11 105/13 111/15 112/5 where [63] 5/4 5/16 10/25 14/15 15/23 16/24 18/14 21/7 21/24 22/7 24/3 24/6 24/13 26/5 26/8 28/14 29/24 47/10 51/13 52/16 52/18 56/9 58/21 58/22 59/7 61/10 61/11 61/13 61/15 62/16 63/7 66/11 67/5 69/11 69/12 70/7 70/10 71/8 74/11 77/19 77/23 78/21 80/18 89/13 90/20 90/22 91/2 91/4 91/14 93/3 93/15 94/15 94/16 94/23 95/20 98/13 99/19 101/13 102/3 104/1 108/2 110/17 111/20 whereas [2] 9/11 101/25 wherever [1] 75/22 whether [20] 26/13 26/20 43/8 44/14 44/14 44/15 46/12 47/23 50/18 50/20 50/21 60/5 61/22 62/4 62/8 62/9 78/16 84/10 98/11 107/11 which [87] 9/21 11/8 17/4 17/8 18/13 20/2 21/17 23/7 30/9 33/3 33/5 34/15 35/14 35/14 35/23 36/3 36/4 36/5 36/13 36/14 36/24 37/4 37/12 37/20 38/8 38/10 39/2 39/15 40/10 40/12 41/5 45/8 45/9 46/20 47/1 47/22 48/3 48/5 48/19 51/7 51/9 51/18 55/15 56/23 60/13 61/22 62/11 65/6 65/13 65/21 66/1 66/2 66/15 67/11 67/20 67/24 70/9 70/22 73/15 73/17 73/18 74/14 74/15 74/19 75/17 75/17 76/11 76/15 77/15 79/24 80/8 81/4 81/18 81/20 84/3 85/3 88/18 88/20 88/21 95/7 97/9 97/21 98/15 109/18 112/1 112/2 112/4 while [5] 21/18 30/3 69/18 77/19 85/8 who [12] 3/6 28/3 35/1 44/25 69/21 71/19 72/4 76/20 86/22 91/20 106/10 112/5 whole [9] 13/11 21/17 31/17 46/10 60/19 66/15 73/20 75/19 75/19 wholly [1] 81/4 whose [1] 30/22 why [27] 6/20 7/24 9/15 19/20 20/16 20/18 26/24 31/24 34/25 40/7 57/21 68/16 71/4 71/22 71/24 72/25 90/22 90/25 93/1 93/4 100/14 102/8 103/10 103/20 104/22 106/15 109/12 wide [4] 30/16 31/18 86/3 108/9 wider [1] 24/7 width [1] 100/18 Wild [4] 8/12 29/23 88/11 88/17 wilderness [8] 26/17 35/20 35/21 35/22 36/2 36/5 37/8 91/21 Wildlands [16] 7/1 8/7 8/16 8/18 9/17 13/17 13/18 57/18 58/19 76/10 76/20 77/18 78/9 78/13 80/15 80/18 wildlife [7] 13/18 13/21 14/19 14/24 74/10 76/10 87/3 will [62] 3/5 4/6 5/20 5/23 9/13 10/7 12/6 17/5 17/7 18/15 22/4 22/19 22/22 23/6 26/25 30/14 31/25 34/8 34/8 34/17 34/19 36/15 39/21 39/23 40/5 40/9 40/24 42/4 44/23 44/25 45/8 46/6 57/3 57/5 57/6 57/7 61/21 61/24 62/9 66/8 67/22 72/21 73/22 74/13 74/13 76/4 82/25 83/4 83/21 91/1 91/10 93/13 96/10 99/16 99/17 99/17 101/13 107/16 109/23 110/10 110/22 111/11 Willamette [1] 49/10 window [1] 69/5 winter [8] 2/4 3/12 23/15 23/21 23/24 24/22 86/6 102/19 wisely [1] 63/1 wish [1] 4/3 wishes [1] 4/17 within [26] 6/18 6/23 10/16 17/2 25/17 30/13 36/1 36/10 36/23 37/3 37/8 40/24 42/4 43/11 56/14 63/11 75/7 80/16 80/24 85/24 91/22 99/21 102/2 102/6 104/19 108/5 without [13] 20/1 27/7 27/20 28/11 29/10 31/19 33/1 33/2 70/16 87/24 98/14 111/22 113/6 won't [5] 12/5 34/16 85/19 90/8 95/24 wondering [1] 84/17 wood [1] 41/15 wooden [1] 41/19 woods [1] 52/18 words [5] 6/8 6/18 21/25 24/21 60/17 work [8] 35/2 39/18 43/19 67/8 72/3 74/5 87/16 96/10 worked [6] 4/11 52/21 68/10 69/13 71/6 112/5 working [4] 4/20 29/12 43/19 67/4 works [2] 85/15 89/21 world [1] 69/17 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 133 of 134 W worth [1] 105/17 would [75] 5/17 6/6 6/12 7/20 7/23 8/2 10/2 10/23 11/21 12/2 15/10 16/1 16/7 17/20 19/4 21/20 24/4 25/8 25/11 25/11 27/10 27/11 27/15 27/18 27/25 28/18 28/22 29/1 29/21 30/1 31/21 33/25 36/19 37/8 38/4 41/22 42/16 43/2 43/4 43/25 48/20 49/22 51/3 52/12 56/22 56/24 57/9 57/11 57/12 57/14 61/3 61/7 62/17 63/21 66/2 66/5 66/12 67/24 68/2 68/9 70/5 77/11 84/23 88/2 90/4 92/12 97/25 98/15 101/22 103/22 105/5 106/16 107/1 108/7 109/21 wouldn't [3] 42/9 46/9 60/2 WR [11] 10/18 17/13 17/15 18/6 18/21 19/2 27/2 65/6 73/17 74/19 103/10 WR-3 [11] 10/18 17/13 17/15 18/6 18/21 19/2 27/2 65/6 73/17 74/19 103/10 writing [1] 106/1 wrong [1] 31/21 wrote [1] 31/8 WS [1] 82/1 WS-16 [1] 82/1 X Xerces [16] 28/2 31/5 31/8 51/9 51/12 52/23 53/1 71/19 71/22 71/24 72/2 87/14 100/12 100/18 103/25 106/18 Xerces' [1] 100/15 Y Yankee [1] 79/13 year [9] 39/16 39/18 49/9 53/23 76/18 86/13 86/14 88/20 89/25 year-round [1] 89/25 years [6] 10/21 27/23 29/10 49/12 104/17 112/6 yes [17] 22/13 41/9 49/16 61/1 61/18 69/7 70/3 72/16 81/9 82/15 82/15 82/25 84/8 91/10 92/3 93/17 110/18 yet [2] 9/5 72/8 you [187] you'll [1] 99/15 you're [25] 4/18 19/7 19/7 23/17 25/4 35/3 49/14 58/24 59/19 59/19 70/22 72/14 74/11 74/12 78/4 78/5 78/6 84/17 104/12 104/13 104/16 106/8 110/15 110/16 110/20 you've [6] 4/1 4/20 59/6 69/22 89/11 91/19 your [146] Z zero [1] 32/1 Zigzag [3] 36/3 42/13 65/1 zoom [1] 22/17 Case 3:13-cv-00828-AA Document 215-1 Filed 02/27/17 Page 134 of 134