Cascadia Wildlands et al v. Carlton et al

Motion for Summary Judgment . Oral Argument requested.

D. Or.October 31, 2016

John R. Mellgren (OSB # 114620) Western Environmental Law Center 1216 Lincoln Street Eugene, Oregon 97405 Ph. (541) 359-0990 Fax (541) 485-2457 mellgren@westernlaw.org Attorney for Plaintiffs Robin Meacher (OSB # 143851) Cascadia Wildlands P.O. Box 10455 Eugene, Oregon 97440 Ph: (541) 434-1463 robin@cascwild.org Attorney for Plaintiff Cascadia Wildlands UNITED STATES DISTRICT COURT DISTRICT OF OREGON EUGENE DIVISION CASCADIA WILDLANDS, et al. Plaintiffs, vs. ALICE CARLTON, et al. Defendants, and AMERICAN FOREST RESOURCE COUNCIL, Defendant-Intervenor. Case No. 6:16-cv-01095-JR PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT REQUEST FOR ORAL ARGUMENT Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 1 of 45 Page i – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................... i TABLE OF AUTHORITIES ........................................................................................................... iii LIST OF ACRONYMS .................................................................................................................... viii MOTION .............................................................................................................................................. 1 JURISDICTION AND STANDING .............................................................................................. 1 STANDARD OF REVIEW ............................................................................................................... 3 BACKGROUND ................................................................................................................................. 4 I. The National Environmental Policy Act. ....................................................................... 4 II. The Loafer Timber Sale Project. ..................................................................................... 7 III. History of the Loafer Project. ........................................................................................ 13 ARGUMENT ...................................................................................................................................... 15 I. The Forest Service failed to analyze and disclose the direct, indirect, and cumulative effects of the Loafer Project. ..................................................................... 15 a. The Forest Service failed to disclose and analyze relevant information regarding older forests within the Loafer Project area. ....................................... 18 b. The Loafer Project EA fails to consider the effects of road building and logging on the visual and recreation aspects of the North Umpqua Trail and Umpqua Hot Springs. ............................................................................................... 22 II. The Loafer Project’s effects are significant, and an Environmental Impact Statement is required. ...................................................................................................... 25 a. The Loafer Project may have adverse effects on the northern spotted owl, a threatened species under the ESA. ......................................................................... 26 b. The Loafer Project’s effects are likely to be highly controversial, highly uncertain, or involve unique or unknown risks. ................................................... 29 Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 2 of 45 Page ii – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR c. The Loafer Project will be implemented in geographic areas with unique characteristics, including proximity to ecologically critical areas. ...................... 32 d. The Loafer Project’s direct and cumulative impacts are significant. ................. 33 e. The Loafer Project may establish a precedent for future actions. ..................... 33 CONCLUSION .................................................................................................................................. 34 CERTIFICATE OF SERVICE ....................................................................................................... 36 Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 3 of 45 Page iii – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR TABLE OF AUTHORITIES Cases Anaheim Mem. Hosp. v. Shalala, 130 F.3d 845 (9th Cir. 1997) ................................................................................................... 4 Anderson v. Evans, 314 F.3d 1006 (9th Cir. 2002) ............................................................................................... 34 Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229 (9th Cir. 2001) ................................................................................................. 4 Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) ......................................................................................... passim Cascadia Wildlands v. U.S. Forest Service, 937 F. Supp. 2d 1271 (D. Or. 2013) ................................................................................ 7, 26 Cascadia Wildlands v. U.S. Forest Serv., No. 6:13-cv-02130-MC (D. Or. Dec. 3, 2013) ................................................................... 15 Churchill Cnty. v. Norton, 276 F.3d 1060 (9th Cir. 2001) ................................................................................................. 4 Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) .................................................................................................................. 3 Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir. 2008) ........................................................................................... 7, 26 Ctr. for Biological Diversity v. Salazar, 695 F.3d 893 (9th Cir. 2012) .......................................................................................... 15, 16 Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157 (9th Cir. 2003) ................................................................................................. 4 Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir. 2006) ............................................................................................... 27 Found. for N. Am. Wild Sheep v. U.S. Dep’t of Agric., 681 F.2d 1172 (9th Cir. 1982) ........................................................................................ 18, 30 Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 4 of 45 Page iv – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR Friends of the Clearwater v. Dombeck, 222 F.3d 552 (9th Cir. 2000) ................................................................................................... 5 Humane Soc’y of the U.S. v. Locke, 626 F.3d 1040 (9th Cir. 2010) ................................................................................................. 4 Idaho Sporting Congress v. Thomas, 137 F.3d 1146 (9th Cir. 1998) ................................................................................................. 6 In Def. of Animals v. U.S. Dep’t of Interior, 751 F.3d 1054 (9th Cir. 2014) ............................................................................................... 18 Klamath-Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549 (9th Cir. 2006) ................................................................................................... 6 Klamath-Siskiyou Wildlands Ctr. v. Bur. of Land Mgmt., 387 F.3d 989 (9th Cir. 2004) .......................................................................................... 16, 17 LaFemme v. F.E.R.C., 852 F.2d 389 (9th Cir. 1988) ................................................................................................. 24 Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) ................................................................................................... 3 Marsh v. Ore. Natural Resource Council, 490 U.S. 360 (1989) .................................................................................................................. 5 Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953 (9th Cir. 2005) ................................................................................................. 16 Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005) ............................................................................................... 30 Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372 (9th Cir. 1998) ............................................................................................... 25 Ocean Advocates v. United States Army Corps of Eng’rs, 402 F.3d 846 (9th Cir. 2005) ................................................................................................. 17 Or. Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003) ................................................................................................. 2 Or. Natural Res. Council Action v. U.S. Forest Serv., 293 F. Supp. 2d 1200 (D. Or. 2003) ...................................................................................... 4 Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 5 of 45 Page v – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR Or. Natural Res. Council v. Lowe, 109 F.3d 521 (9th Cir. 1997) ................................................................................................... 3 Or. Natural Res. Council Fund v. Brong, 492 F.3d 1120 (9th Cir. 2007) ............................................................................................... 17 Or. Wild v. Bureau. of Land Mgmt., 2015 WL 1190131 (D. Or. March 14, 2015) ...................................................................... 27 Presidio Golf Club v. Nat’l Park Serv., 155 F.3d 1153 (9th Cir. 1998) ............................................................................................... 33 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) ......................................................................................................... 5 Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006) .................................................................................................................... 2 Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2009) ................................................................................................. 2 Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988) ........................................................................................ 26 Sierra Club v. U.S. Forest Serv., 843 F.2d 1190 (9th Cir. 1988) ............................................................................................... 30 Swanson Group Mfg., LLC. v. Jewel, 790 F.3d 235 (D.C. Cir. 2015) .............................................................................................. 12 Swanson Group Mfg., LLC. v. Salazar, 951 F. Supp. 2d 75 (D. D.C. 2013) ...................................................................................... 12 Town of Cave Creek v. F.A.A., 325 F.3d 320 (D.C. Cir. 2003) .............................................................................................. 33 W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) ................................................................................................... 2 WildEarth Guardians v. Mont. Snowmobile Ass’n, 790 F.3d 920 (9th Cir. 2015) ................................................................................................. 20 Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 6 of 45 Page vi – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR WildEarth Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148 (9th Cir. 2015) ................................................................................................. 2 Statutes 5 U.S.C. § 701 ........................................................................................................................................ 1 5 U.S.C. § 706 ....................................................................................................................... 1, 3, 22, 25 16 U.S.C. § 1532 .................................................................................................................................. 14 28 U.S.C. § 1331 .................................................................................................................................... 1 28 U.S.C. § 1391 .................................................................................................................................... 1 28 U.S.C. § 2201 .................................................................................................................................... 1 28 U.S.C. § 2202 .................................................................................................................................... 1 42 U.S.C. § 4321 ................................................................................................................................ 1, 4 42 U.S.C. § 4332 ......................................................................................................................... 4, 5, 25 42 U.S.C. § 4342 .................................................................................................................................... 5 Rules and Regulations 40 C.F.R. § 1500.1 .................................................................................................................... 5, 16, 20 40 C.F.R. § 1500.3 ................................................................................................................................. 5 40 C.F.R. § 1501.1 ................................................................................................................................. 4 40 C.F.R. § 1501.4 ................................................................................................................................. 5 40 C.F.R. § 1502.16 ............................................................................................................................. 16 40 C.F.R. § 1508.7 ............................................................................................................................... 17 40 C.F.R. § 1508.8 ............................................................................................................................... 16 40 C.F.R. § 1508.9 ............................................................................................................................. 5, 6 40 C.F.R. § 1508.25 ............................................................................................................................. 16 Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 7 of 45 Page vii – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR 40 C.F.R. § 1508.27 ....................................................................................................................... passim 77 Fed. Reg. 71876 (Dec. 4, 2012) ................................................................................................... 14 Fed. R. Civ. P. 56 .................................................................................................................................. 3 Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 8 of 45 Page viii – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR LIST OF ACRONYMS USED IN PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND IN THE ADMINISTRATIVE RECORD APA – Administrative Procedure Act AR – Administrative Record CEQ – Council on Environmental Quality DBH – Diameter at Breast Height DN/FONSI – Decision Notice and Finding of No Significant Impact EA – Environmental Assessment EIS – Environmental Impact Statement ESA – Endangered Species Act FONSI – Finding of No Significant Impact FWS – United States Fish and Wildlife Service NEPA – National Environmental Policy Act NSO – Northern Spotted Owl NRF – Nesting, Roosting, Foraging Habitat for the Northern Spotted Owl OEM – Owl Estimation Methodology USFWS – United States Fish and Wildlife Service VQO – Visual Quality Objectives Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 9 of 45 Page 1 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR MOTION Plaintiffs Cascadia Wildlands and Oregon Wild (“Cascadia”) hereby respectfully file this motion for summary judgment. Cascadia requests the Court declare that Defendants Alice Carlton, United States Forest Service, and U.S. Department of Agriculture (“Forest Service”) violated the National Environmental Policy Act (“NEPA”) and its implementing regulations in designing, analyzing, and authorizing the Loafer Timber Sale Project (“Loafer Project”) Environmental Assessment (“EA”) and Decision Notice and Finding of No Significant Impact (“DN/FONSI”). Cascadia further requests that the Court vacate the EA and DN/FONSI, and enjoin the Forest Service and its agents from proceeding with any activities authorized by the DN/FONSI until such time as the agency demonstrates to this Court that it has complied with the law. In compliance with Local Rule 7-1(a), counsel for Cascadia certifies that the parties made a good faith effort through telephone conferences to resolve the dispute and have been unable to do so. JURISDICTION AND STANDING Jurisdiction is proper in this Court under 28 U.S.C. § 1331. This cause of action arises under the laws of the United States, including the APA, 5 U.S.C. § 701 et seq., and NEPA, 42 U.S.C. § 4321 et seq. An actual, justiciable controversy exists between Cascadia and the Forest Service. The requested relief is proper under 28 U.S.C. §§ 2201 & 2202, and 5 U.S.C. § 706. Venue is properly vested in this Court by 28 U.S.C. § 1391(e) because all or a substantial part of the events or omissions giving rise to the controversy occurred within this judicial district. The Forest Service official who authorized the decision is headquartered in Roseburg, Oregon, and that office is located within this district. Cascadia submitted timely Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 10 of 45 Page 2 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR comments on the Forest Service’s Loafer Project draft Environmental Assessment in 2013. Administrative Record (“AR”) 11067-11222.1 Cascadia has standing to challenge the Forest Service’s Loafer EA and DN/FONSI. To establish Article III standing, Cascadia “must show that: (1) [they] ha[ve] suffered an injury in fact that is concrete and particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision.” WildEarth Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148, 1154 (9th Cir. 2015) (quoting Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir. 2008)). “Once plaintiffs seeking to enforce a procedural requirement establish a concrete injury, ‘the causation and redressability requirements are relaxed.’” WildEarth Guardians, 795 F.3d at 1154 (quoting W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485 (9th Cir. 2011)).2 Cascadia has standing to bring this suit on behalf of its members because they have standing to sue in their own right, the interests Cascadia seeks to protect are germane to its organizational purposes, and the participation of individual members is not required in this litigation. See Declarations of Francis Eatherington and Daniel Kruse, filed herewith. 1 Cascadia cites to documents in the Administrative Record (ECF Doc. Nos. 21, 23) with the prefix “AR” followed by the numerical portion of the Bates stamp number. Cascadia omits any extraneous zeros included in the numbering. 2 An organization “has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1109 (9th Cir. 2003) (internal citation omitted). Once one party establishes that it has standing to sue, the standing inquiry ends. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 52, n. 2 (2006) (“[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.”). Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 11 of 45 Page 3 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR Cascadia’s members have suffered injury in fact, including procedural injury, from the Forest Service’s issuance of the EA and DN/FONSI, as their standing declarations show. Id. The relief requested in this litigation would redress Cascadia’s injuries. Id. Cascadia has demonstrated organizational standing through its members. Id. STANDARD OF REVIEW Summary judgment is appropriate if “there is no genuine issue as to any material fact and … the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Judicial review of agency actions under NEPA is governed by the APA. 5 U.S.C. § 706. Under the APA, “[t]he reviewing court shall … hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An agency action is arbitrary and capricious “if the agency relied on factors Congress did not intend it to consider, ‘entirely failed to consider an important aspect of the problem,’ or offered an explanation ‘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.’” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (internal citation omitted). The arbitrary and capricious standard is deferential, but it does not shield agency decisions from a “thorough, probing, in-depth review.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971). The Forest Service must articulate “a rational connection between the facts found and the conclusions made.” Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997). It is not entitled to deference where its conclusions “do not have a Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 12 of 45 Page 4 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR basis in fact.” Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1236 (9th Cir. 2001). An agency’s decision can be upheld only on the basis of the reasoning found in that decision; the reviewing court cannot substitute reasons for agency action that are not in the record. Anaheim Mem. Hosp. v. Shalala, 130 F.3d 845, 849 (9th Cir. 1997). Rationales for agency decision-making appearing for the first time in litigation are post hoc explanations that cannot be used to justify agency action. Humane Soc’y of the U.S. v. Locke, 626 F.3d 1040, 1049-50 (9th Cir. 2010) (internal citation omitted). Review for compliance with NEPA consists of “ensuring that the agency has taken a ‘hard look’ at the environmental effects of the proposed action.” Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir. 2003) (citing Churchill Cnty. v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001)). BACKGROUND I. The National Environmental Policy Act. Congress enacted NEPA in 1969, directing all federal agencies to assess the environmental impact of proposed actions that significantly affect the quality of the environment. 42 U.S.C. § 4332(2)(C). “The purpose of NEPA is to foster better decision making and informed public participation for actions that affect the environment.” Or. Natural Res. Council Action v. U.S. Forest Serv., 293 F. Supp. 2d 1200, 1204 (D. Or. 2003) (citing 42 U.S.C. § 4321; 40 C.F.R. § 1501.1(c)). NEPA’s disclosure goals are: (1) to ensure that the agency has carefully and fully contemplated the environmental effects of its action, and (2) to insure that the public has sufficient information to challenge the agency’s action. Id. “[NEPA] ensures that the agency, in reaching its decision, will have available, and will Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 13 of 45 Page 5 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR 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 that decision.” Friends of the Clearwater v. Dombeck, 222 F.3d 552, 557 (9th Cir. 2000) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)). “Stated differently, NEPA’s purpose is to ensure that ‘the agency will not act on incomplete information, only to regret its decision after it is too late to correct.’” Friends of the Clearwater, 222 F.3d at 557 (quoting Marsh v. Or. Natural Resource Council, 490 U.S. 360, 374 (1989)). The Council on Environmental Quality (“CEQ”) promulgated regulations to implement NEPA that are binding on federal agencies. 42 U.S.C. § 4342; 40 C.F.R. §§ 1500 et seq. These regulations apply to an EA as well as to an EIS. 40 C.F.R. § 1500.3. NEPA regulations require the Forest Service to disclose and analyze the environmental effects of the proposed action. 40 C.F.R. § 1500.1(b). Specifically, “NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.” Id. Under NEPA, the Forest Service must prepare an environmental impact statement (“EIS”) for any “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). When it is not clear whether an action will significantly affect the environment (and thus require an EIS), the agency may first prepare an environmental assessment (“EA”). 40 C.F.R. §§ 1501.4(b), 1508.9. An EA is “a concise Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 14 of 45 Page 6 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR public document” that “provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” 40 C.F.R. § 1508.9(a). An EA “shall include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” Id. at § 1508.9(b). NEPA regulations require the agency to consider ten factors in determining whether a federal action may have a significant impact, thus requiring an EIS. 40 C.F.R. § 1508.27(b). Among other factors, the agency must consider the impacts that may be beneficial or adverse; unique characteristics of the geographic area such as proximity to park lands or ecologically critical areas; the degree to which the effects on the quality of the human environment are likely to be highly controversial; the degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks; the degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration; and the degree to which the action may adversely affect an endangered or threatened species or its habitat. 40 C.F.R. §§ 1508.27(b)(1), (b)(3)-(7), (b)(9). Importantly, a “plaintiff need not show that significant effects will in fact occur,” but rather need only raise “substantial questions whether a project may have a significant effect … [t]his is a low standard.” Klamath-Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 562 (9th Cir. 2006) (quoting Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998)) (emphasis original). If the agency’s action may be environmentally significant according to any one of the criteria, the agency must prepare an EIS. Ctr. for Biological Diversity v. Nat’l Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 15 of 45 Page 7 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR Highway Traffic Safety Admin., 538 F.3d 1172, 1220 (9th Cir. 2008) (“an action may be ‘significant’ if one of these factors is met”). Further, even if no single significance factor triggers the requirement to prepare an EIS, more than one factor collectively can. Cascadia Wildlands v. U.S. Forest Service, 937 F. Supp. 2d 1271, 1283-84 (D. Or. 2013) (“[W]hen considered individually, none of these significance factors might require an EIS. However, when considered collectively, they do.”). II. The Loafer Timber Sale Project. The Loafer Project is located in the Diamond Lake District of the Umpqua National Forest, approximately fifty miles east of Glide, Oregon. AR 12243. The planning area consists of approximately 22,614 acres of publicly-owned National Forest land. Id. The Project area encompasses the Umpqua Hot Springs and a significant portion of the North Umpqua Trail. AR 12399. The Project area then expands east to encircle the Thorn Prairie and Dread and Terror Ridge undeveloped areas. AR 12406. There are significant recreation activities in the project area, the primary being day use sites, dispersed camping, biking, hiking, and hunting. Id. The Umpqua Hot Springs is the only developed recreation site, and is a popular day-use site that includes a number of dispersed camp sites. Id. Beyond important recreation values, the area also provides a significant amount of habitat that is important to the northern spotted owl. AR 10655. All of the proposed logging units are within designated critical habitat for the spotted owl. Id. The Loafer Project is comprised of approximately 1,397 acres of commercial thinning, retaining as few as 20 trees per acre in some units. AR 13213. This will include approximately 1,397 acres of ground-disturbing activity, including 1,175 acres of ground- Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 16 of 45 Page 8 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR based (mechanized) yarding, 129 acres of skyline yarding systems, and 93 acres of helicopter yarding.3 Id. The project will also include prescribed burning on all treated units, and on 821 more acres. AR 13214. There will be 5.6 miles of new temporary roads, AR 13214, including into undeveloped areas. AR 12412. The Project contemplates logging in approximately 40 acres of riparian reserves. AR 12247. Logging will occur in forests across from the popular Umpqua Hot Springs, and above and adjacent to the North Umpqua Trail. AR 12256. Two logging units–Units 302 and 303–are located approximately 500 feet across the North Umpqua River from the Umpqua Hot Springs, AR 12399; AR 12256, and on a bluff above a section of the North Umpqua Trail. AR 12399-12400. Unit 303 will be logged to a canopy cover of less than 30%, AR 12293, while Unit 302 will retain a canopy cover of approximately 60%, AR 12292. The Loafer Project also includes some of the last remaining unroaded areas in the Cascades outside of designated wilderness areas. These areas, known as the Dread and Terror Ridge and Thorn Prairie undeveloped areas, are part of a current citizens’ wilderness proposal known as the Crater Lake Wilderness Proposal. AR 12406. The planning area contains approximately 14,176 acres of undeveloped areas, meaning that these areas have received little or no previous management in the past, including that from road construction and logging.4 AR 12410. The Project would reduce the total amount of undeveloped area in the project area by 1,077 acres. AR 12411. The Dread and Terror undeveloped area would decrease from 1,906 acres to 1,474 acres–a reduction of 432 acres–representing an 3 Yarding means removing logs from the stump and throughout the unit to the area where they will be gathered for transport. 4 The words “undeveloped,” “unroaded,” and “roadless” are used interchangeably. Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 17 of 45 Page 9 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR approximately 23% decrease. Id. The Thorn Prairie undeveloped area would be reduced in size from 1,063 acres to 997 acres, a decrease of 66 acres. Id. The management in the Thorn Prairie and Dread and Terror Ridge regions of the project would have significant ramifications for the citizens’ wilderness proposal. The proposal aims to create a migration corridor of unroaded parcels and remnants of the Umpqua National Forest’s once-extensive old growth forest for plants and wildlife. AR 11062. The Dread and Terror Ridge and Thorn Prairie areas fit into the larger network of undeveloped areas. AR 12410. All units in the Loafer Project are within or partially within undeveloped areas, except for one. AR 12410. Undeveloped areas may have unique characteristics because they may not have been managed in the last 60 years and can exhibit a sense of naturalness that is not normally found in managed land. Id. The EA excludes the Thorn Prairie and Dread and Terror Ridge areas from its analysis on potential wilderness areas because they are smaller than 5,000 acres, AR 1407, despite numerous studies concluding smaller areas (>1,000 acres)–such as Thorn Prairie and Dread and Terror Ridge– are ecologically significant. See AR 11092-11093. The logging and road construction in the undeveloped areas would lead to a managed appearance for decades. The Forest Service expects this altered, managed appearance to persist for 20 to 60 years. AR 12412. The Loafer Project will rehabilitate roads to reach the units in the Dread and Terror Ridge and Thorn Prairie areas, expecting recovery of soil structure and biology to take ten years. AR 12413. Importantly, the logging and road construction proposed by the Loafer Project would preclude these undeveloped areas “from Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 18 of 45 Page 10 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR consideration for potential wilderness areas,” AR 12411, and ultimately designation as Wilderness by Congress. As noted, the Loafer Project is within a landscape that is greatly important for the northern spotted owl. The majority of the project area–including all logging units–lies within designated critical habitat for the northern spotted owl. AR 10655. The spotted owl occupies late-successional and old growth habitat from southern British Columbia through Washington, Oregon, and California as far south as Marin County. Id. Spotted owls rely on older forest habitats because such habitats generally contain the structures and characteristics required for the owl’s essential biological functions of nesting, roosting, foraging, and dispersal.5 AR 10369. These structures include: multi-layered and multi-species tree canopy dominated by large overstory trees; moderate to high canopy closure; high incidence of trees with large cavities and other types of deformities; numerous large snags, an abundance of large, dead wood on the ground; and open space within and below the upper canopy for owls to fly. Id. Forested stands with high canopy closure also provide thermal cover as well as protection from predation. Id. Due to concerns over its widespread habitat loss, habitat modification, and the lack of regulatory mechanisms to protect the species, the U.S. Fish and Wildlife Service (“FWS”) 5 According to FWS, “[s]potted owls generally rely on older forested habitats because such forests contain the structures and characteristics required for nesting, roosting, and foraging…Nesting spotted owls consistently occupy stands with a high degree of canopy closure that may provide thermoregulatory benefits … and protection from predators. Foraging habitat for spotted owls provides a food supply for survival and reproduction…Dispersal habitat is essential to maintaining stable populations by filling territorial vacancies when resident spotted owls die or leave their territories, and to providing adequate gene flow across the range of the species. Dispersal habitat, at a minimum, consists of stands with adequate tree size and canopy closure to provide protection from avian predators and at least minimal foraging opportunities.” AR 10369. Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 19 of 45 Page 11 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR listed the northern spotted owl as a threatened species under the Endangered Species Act (“ESA”) June 26, 1990. AR 10364. The northern spotted owl was listed with a recovery priority number of 3C, reflecting a high degree of threat, a low potential for recovery, and conflict with development, construction, and other economic activity. AR 10640. Since the owl was listed in 1990, its population continues to decline on a range-wide basis. Id. The latest demographic data shows a three percent decline in the overall spotted owl population every year. AR 10059. In the HJ Andrews Central Cascades Demography Study Area– located just north of the Loafer Project area–the spotted owl population declined 20 to 30 percent between 1988 and 2008. AR 10392. In the South Cascades Demographic Study Area–located just south of the Loafer Project area–the spotted owl population showed substantial declines throughout the decade preceding 2011. AR 10394. The FWS published a final revised recovery plan for the northern spotted owl on July 1, 2011. AR 10382. The revised recovery plan identifies several pressing threats to the northern spotted owl, including: (1) ongoing loss of spotted owl habitat from timber harvest; (2) competition with barred owls; (3) the loss or modification of habitat from uncharacteristic wildfire; and (4) the loss and distribution of spotted owl habitat as a result of past activities and disturbances. Id. Despite being entirely in designated spotted owl critical habitat, the Forest Service did not survey for spotted owls in the Loafer Project area. Instead, the Forest Service used an owl estimation methodology (“OEM”) to estimate owl activity centers and home ranges within the Project area. AR 10659. The OEM produced an estimate of eight potential home Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 20 of 45 Page 12 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR ranges located around activity centers based on known historic or predicted activity center locations within the Loafer Project area.6 AR 10659. The Loafer Project will remove important spotted owl habitat features and negatively impact prey species. Approximately 908 acres of nesting, roosting, and foraging habitat will be removed and an additional 522 acres will be downgraded to no longer provide suitable habitat. AR 12302. Habitat loss and fragmentation effectively reduce habitat quality in spotted owl home ranges, and reduced suitable habitat reduces spotted owl nesting success. AR 10642. In addition to habitat loss, the logging authorized by the Decision Notice is expected to result in population declines for the flying squirrel, which is a spotted owl primary prey species in the project area. AR 12302; AR 10668. The negative effects from thinning can last up to 50 to 60 years, depending on the level of canopy removed or the productivity affecting the growth rates of trees. AR 10668. The Loafer Project includes logging that will reduce stands to a canopy cover of under 30%. Id. The Forest Service identified restoring species and structural composition consistent with natural disturbance regimes as a purpose and need for the Loafer Project. AR 12246. This purpose and need includes creating meadow habitat and utilizing thinning prescriptions that significantly reduce canopy cover and are intended to benefit elk. AR 10655. Evidence to support the presence of historic meadow habitat in the Loafer Project area is based on aerial photographs taken of the project area in 1946 and in 1966. AR 12290. Parts of the 6 In 2013, the U.S. District Court for the District of Columbia invalidated the OEM, though the court allowed projects that relied on the OEM to go forward if they were initiated (including being planned) before June 26, 2013. AR 12205; see also Swanson Group Mfg., LLC. v. Salazar, 951 F. Supp. 2d 75, 88 (D. D.C. 2013) rev’d on other grounds, Swanson Group Mfg., LLC. v. Jewell, 790 F.3d 235 (D.C. Cir. 2015). Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 21 of 45 Page 13 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR project area were managed by ranchers through chaining, bulldozing, and seeding to enhance forage for grazing purposes into the early 1990s, when the last grazing allotment was abandoned. AR 12368. Cattlemen also frequently burned the flats in the project area to improve forage for cattle. AR 12367. The most recent documented burn activity was in 1938, based on photographs recorded in 1933 and 1936 and trail logs of 1928, 1932, and 1938. AR 12367. The EA cites this evidence of “historic burning” to support its selection of reference conditions. AR 12290. However, the scientific community is divided on whether anthropogenic, or human-caused, fire should be considered a natural fire regime and as a natural forest dynamic process. AR 12367. Currently, some of the historic meadows have been recolonized by conifers and now provide suitable habitat for the northern spotted owl. AR 12460. The Loafer Project proposes to log and remove trees in a number of the units to the point that these areas will no longer provide owl habitat, existing nesting, roosting, and foraging (“NRF”) habitat will be removed, or NRF habitat will be downgraded to dispersal habitat only. AR 12301. III. History of the Loafer Project. The Loafer Project began with a scoping notice sent to the public on March 3, 2012 by the Forest Service describing the proposal and soliciting scoping comments on it. AR 9490-9492. Cascadia Wildlands submitted scoping comments on the Loafer Project on March 16, 2012. AR 9637. Oregon Wild submitted scoping comments on March 30, 2012. AR 9647-9657. Cascadia joined the Forest Service on an agency-sponsored public field tour of the Loafer Project area on May 24, 2012. AR 9861. Cascadia Wildlands submitted additional scoping comments following this field trip on May 28, 2012. AR 9864-9928. Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 22 of 45 Page 14 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR To comply with its duties under the ESA, the Forest Service submitted a Biological Assessment of the Loafer Project to FWS in July 2012. AR 9985. On August 22, 2012, the FWS issued a Biological Opinion on the effects of the Loafer Project. AR 10285-10426. The Biological Opinion concluded that the Project was likely to adversely affect, but not jeopardize the northern spotted owl, and would not destroy its designated critical habitat.7 AR 10356. FWS issued an incidental take statement for the Loafer Project that allows for the take8 of one pair and two juvenile spotted owls during project implementation. AR 10411. On March 12, 2013, the Forest Service announced the availability of an EA related to the Loafer Project. AR 10814. On April 18, 2013, Cascadia Wildlands submitted comments on the Loafer Project EA, AR 11067-11081, and submitted additional comments on April 25, 2013. AR 1106-11081. Oregon Wild submitted comments on the Loafer Project on April 18, 2013. The Forest Service published a final EA for the Loafer Project on May 8, 2013, AR 11425-11658, and issued a DN/FONSI on May 10, 2013, AR 11703-11715. On June 24, 2013, Cascadia filed an administrative appeal of the Loafer Project, noting a variety of disputes with the proposal, including reducing spotted owl habitat within the project area, the lack of response to public comments, the failure to conduct proper surveys for Survey and Manage Species, and impacts to recreational resources. AR 11772- 7 The Biological Opinion referenced proposed northern spotted owl critical habitat, which was formally designated as critical habitat on December 4, 2012. 77 Fed. Reg. 71876-72068 (Dec. 4, 2012). The Forest Service updated its Biological Assessment with the new critical habitat designation on February 7, 2013. AR 10694; 10697. FWS confirmed that the Biological Opinion’s conclusions remained valid and in effect. AR 10795. 8 Under the ESA, take does not just refer to the death of an individual, but also “means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 23 of 45 Page 15 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR 11802. On August 1, 2013, the Forest Service denied the administrative appeal, AR 11991- 12034, and Cascadia subsequently sued the Forest Service over the Loafer Project. Cascadia Wildlands v. U.S. Forest Serv., No. 6:13-cv-02130-MC (D. Or. Dec. 3, 2013). On April 10, 2014, the Forest Service withdrew the May 8, 2013 DN/FONSI. AR 12087. The Parties filed a stipulation voluntarily dismissing the litigation without prejudice. Id. at ECF. No.17. After completing additional surveys for species such as great gray owls and red tree voles, AR 12594-95, the Forest Service released a new EA for the Loafer Project on May 1, 2015. AR12237-12469. The Forest Service did not provide the public with an opportunity to comment on the new EA, but rather released a draft DN/FONSI. AR 12593-12610. Cascadia visited the project area on June 23, 2015 to review the proposed project on the landscape. AR 12742. On July 2, 2015, Cascadia filed objections on the Loafer Project with the Forest Service, again highlighting the impacts to spotted owl habitat, recreation and visual resources, and older forests. AR 12739-12776. On August 6, 2015, Cascadia and the Forest Service met for a formal objection resolution meeting. AR 12785-86. On October 16, 2015, the Forest Service responded to Cascadia’s objections, and on February 22, 2016, Umpqua National Forest Supervisor Alice Carlton signed the DN/FONSI for the Loafer Project. AR 12837-12861; AR 13207. ARGUMENT I. The Forest Service failed to analyze and disclose the direct, indirect, and cumulative effects of the Loafer Project. NEPA requires the Forest Service to disclose and analyze environmental information and the consequences of federal action. Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 916 (9th Cir. 2012) (“NEPA requires that we determine whether the agency took a ‘hard look’ at Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 24 of 45 Page 16 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR the likely effects of the proposed action.”). Specifically, NEPA requires that the Forest Service disclose and analyze the direct, indirect, and cumulative impacts and consequences of its activities. 40 C.F.R. §§ 1502.16(a), 1502.16(b), 1508.25(c), 1508.27(b)(7). The failure to disclose and analyze requisite information indicates that the action agency failed to take a “hard look” at the environmental consequences of its actions. Klamath-Siskiyou Wildlands Ctr. v. Bur. of Land Mgmt., 387 F.3d 989 (9th Cir. 2004) (holding that requisite analysis must be in the environmental document). The purpose behind this hard look is to “insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.” 40 C.F.R. § 1500.1(b). “Taking a ‘hard look’ includes ‘considering all foreseeable direct and indirect impacts.” Ctr. for Biological Diversity v. Salazar, 695 F.3d at 916-17 (internal citation omitted) (emphasis added). Direct effects9 “are caused by the action and occur at the same time and place.” 40 C.F.R. § 1508.8(a). Indirect effects “are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable … includ[ing] … effects on air and water and other natural systems, including ecosystems.” 40 C.F.R. § 1508.8(b). “To take the required ‘hard look’ at the proposed project’s effect, an agency may not rely on incorrect assumptions or data” in its NEPA analysis. Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 964 (9th Cir. 2005). “An EA also ‘must fully assess the cumulative impacts of a project.’” Ctr. for Biological Diversity v. Salazar, 695 F.3d at 917 (internal citation omitted). Cumulative effects include “the impact on the environment which results from the incremental impact of the action 9 NEPA regulations use the terms “effects” and “impacts” synonymously. 40 C.F.R. § 1508.8. Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 25 of 45 Page 17 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR when added to other past, present, and reasonably foreseeable future actions … [and] can result from individually minor but collectively significant actions taking place over a period of time.” 40 C.F.R. § 1508.7. There are “two critical features of a cumulative effects analysis[:] … [f]irst, it must not only describe related projects but also enumerate the environmental effects of those projects … Second, it must consider the interaction of multiple activities and cannot focus exclusively on the environmental impacts of an individual project.” Or. Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1133 (9th Cir. 2007). “A proper consideration of the cumulative impacts of a project requires “‘some quantified or detailed information; … [g]eneral statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided.’” Klamath-Sikiyou Wildlands Ctr., 387 F.3d at 993-94 (internal citation omitted). Importantly, “generalized conclusory statements that the effects are not significant or will be effectively mitigated” render a cumulative effects analysis inadequate. Id. at 996. If an agency chooses to prepare an EA instead of an EIS, it must include a “convincing statement of reasons” that explains why the project will not have significant impacts. Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 864 (9th Cir. 2005) (citation omitted). “This account proves crucial to evaluating whether the [agency] took the requisite ‘hard look’ at the potential impact” of the proposed action. Id. An EA and DN/FONSI violate NEPA if they “failed to address certain crucial factors, consideration of which [is] essential to a truly informed decision whether or not to prepare an EIS.” In Def. of Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 26 of 45 Page 18 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR Animals v. U.S. Dep’t of Interior, 751 F.3d 1054, 1072 (9th Cir. 2014) (quoting Found. N. Am. Wild Sheep v. USDA, 681 F.2d 1172, 1178 (9th Cir. 1982)). Here, the Forest Service’s EA fails to disclose, analyze, and otherwise take a “hard look” at significant environmental effects, which makes an accurate assessment of the environmental consequences of its actions impossible. a. The Forest Service failed to disclose and analyze relevant information regarding older forests within the Loafer Project area. The Forest Service failed to disclose and analyze important and relevant information regarding older forests within the project area. Though the Forest Service acknowledges there is mature10 and late seral11 forest within the Loafer Project area, AR 12283, it fails to include the ages of the units proposed for treatments and the ages and locations of stands that were removed from treatment. In its objection, Cascadia explained: NEPA requires the disclosure of the existing condition of the units proposed for logging. The Loafer EA failed to do that. For instance, in the final 2015 EA, no stand age was disclosed. It is not clear to the public how old the units are, or how much old growth they might contain. Protecting old growth forests is important to the public, and yet the EA failed to describe if this type of forest exists in the project area, and if so, the impacts to it. Further, the EA claims that no RA-32 forests exist. Since the definition the Forest Service is using for RA-32 forests includes how many trees per acre are over 30” DBH, the EA should have disclosed this information for each stand in Table 6. AR 12756. The Forest Service’s objection response did not address Cascadia’s objection, other to note that the EA “clearly describes the actions to be taken in sufficient detail.” See 10 A “mature” stand is one where the trees have reached their maximum height potential. The stand age is generally from 80 to 150 years, the average tree diameter is 10 to 19” dbh, and canopy cover is ≥53%. 11 A “late seral” stand is one “with overstory trees dying in an irregular fashion and with understory trees filling the gaps.” AR 12283. Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 27 of 45 Page 19 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR AR 12837-38. Yet review of the EA’s Table 6 shows that this specific information is missing, and there is no explanation provided for why it could not be provided to the public. See AR 12288-89. The location and extent of late-seral and mature stands throughout the planning area was identified throughout the project as an issue of concern with the public. Before the objection period, Cascadia’s scoping comments asked that details about older forests be included in the EA. AR 9641. Cascadia reiterated these concerns on the pubic field tour in May 2012. AR 9863. Cascadia’s comments on the 2013 EA again raised concerns with the limited data provided to the public on older forests in the planning area. AR 11074. During planning for the project, the Forest Service Inter-Disciplinary Team discussed the need to avoid old forest structure and show that units with old forest structure needed to be analyzed even if those areas were later dropped. AR 9228. At one Inter-Disciplinary Team meeting, a Forest Service staffer commented: “I’m sure we have something that shows old forest structure. We need to avoid those areas.” Id. In response, another staffer stated, “we do have that info. If you use it you will be disappointed in what you have left.” Id. Later in the same meeting, the team discussed what definition to use for old growth, suggesting one that is “not strictly age based” and “age is not the sole determining factor. Old growth does not always mean owl habs and vice versa.” Id. In response, a staffer asked: “in terms of old growth and determining it on the ground. How will we map it? Reality on the ground is different. Where we have small inclusions where are we going to get that definition?” Id. These discussions did not translate into the analysis in the Loafer Project EA. The Forest Service does not include the ages of the units in the final EA nor an analysis as to Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 28 of 45 Page 20 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR why some stands were dropped during the planning process and others were not. There was substantial disagreement between members of the public and the Forest Service in the characterization of certain stands within the Loafer Project. The Forest Service includes information only on older forest structure in regards to Recovery Action 32 habitat (RA 32) and the FWS’s determination that there are no RA 32 stands in the project area. AR 10339. RA 32 stands are defined as “having large diameter trees, high amounts of canopy cover, and decadence components such as broken-topped live trees, mistletoe, cavities, large snags, and fallen trees.” AR 10339. As noted above, all mature and old growth forest is not necessarily high-quality owl habitat and vice versa. To address impacts only to older forests in the context of RA 32 and spotted owl habitat is to provide an incomplete and inaccurate picture of the entire affected forest landscape. Without disclosure of the location, distribution, composition, and quality of older forest within the project area, the EA did not insure that environmental information was available to public officials and citizens before the decision was made. 50 C.F.R. §1500.1(b). “To fulfill NEPA’s public disclosure requirements, the agency must provide to the public ‘the underlying environmental data’ from which the forest service develops its opinions and arrives at its decisions.” WildEarth Guardians v. Mont. Snowmobile Ass’n, 790 F.3d 920, 925 (9th Cir. 2015). The agency may choose to incorporate publicly available data underlying the analysis by reference and the incorporated source must be “reasonably available for inspection by potentially interested person within the time allowed for comment.” Id. Yet, the Forest Service did not do so here. The information surrounding the presence and distribution of older forests throughout the project area boundary was not of high quality, as Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 29 of 45 Page 21 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR it is apparent in the record that there was more information available and requested by the planning team that did not make its way into the final analysis. In WildEarth Guardians, the Forest Service provided “virtually no information about where [] big game winter range is actually located, nor the concentration of game in each area.” Id. at 926. The Forest Service acted similarly here. The EA states that stand exams and other field data were used to characterize vegetation conditions at the stand scale. AR 12280. The results of those exams and field visits are not incorporated into the EA other than in general descriptions, percentages, and low resolution maps depicting the entire 22,614 acre planning area. AR 12284. The stand summary contains categories that provide no real description of the stands within the units (e.g. acres, elevation, aspect, land type association, canopy cover in general percentages, quadratic mean diameter, dominant species and plant association group), let alone the landscape. AR 12288. The Forest Service leaves out telling information such as the trees per acre in the units, stand age, the number of trees over 30 inch diameter at breast height (“DBH”), and the size and location of old growth areas found in the project area. The 2013 EA included a table that listed “dominant stratum age”, AR 10876-77, yet this information was not included in the final EA and the Forest Service offers no explanation as to why the age of the units–both those ultimately included in the project and those that were removed–were left out of the final analysis. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA, i.d., and the Forest Service failed to meet these requirements by not including relevant information regarding the location and extent of old growth and mature stands within the Loafer Project area. As such, the Loafer Project EA and DN/FONSI are arbitrary, capricious, and not in Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 30 of 45 Page 22 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR accordance with law. 5 U.S.C. § 706(2)(A). b. The Loafer Project EA fails to consider the effects of road building and logging on the visual and recreation aspects of the North Umpqua Trail and Umpqua Hot Springs Although there is uncertainty surrounding the age of stands to be logged by the Loafer Project, it is certain that the logging will impact important recreational sites on the Umpqua National Forest, including the North Umpqua Trail and Umpqua Hot Springs. The Forest Service’s EA is unlawful because it fails to disclose, analyze, and otherwise take a “hard look” at road building and logging on the visual and recreation aspects of the North Umpqua Trail and the Umpqua Hot Springs. In its comments and objections, Cascadia expressed that the Forest Service failed to actually analyze the effects of logging and building roads in the immediate vicinity of a highly popular recreation site. See AR 12757, 12758. Cascadia explained that the Forest Service should have disclosed and analyzed these direct and indirect effects of reducing canopy cover and conducting ground disturbing activities. Id. Regarding logging across from the Umpqua Hot Springs Cascadia noted: The EA never considered the impacts to recreation from road building above and across from the hot springs. Road construction and maintenance will adversely impact the visual and recreational activities of the Umpqua Hot Springs. The Umpqua Hot Springs are a popular recreation destination for many reasons. The Springs boast sweeping views of the North Umpqua River, the Umpqua National Forest, and its diverse wildlife. The Springs and the adjacent campsites are a relaxing retreat for many visitors and a popular stop along the North Umpqua Trail. Units 302, 303, and 304 are located on either side of the Hot Springs and are visible from the Springs. Road construction and maintenance in these units will decrease the natural beauty and tranquility of the area and will be visible from the Springs. The additional noise, pollution, and truck traffic will be noticeable at the Springs and disrupt the natural setting that the numerous visitors to the Hot Springs and adjacent campsites enjoy every day. AR 12757. As to impacts to North Umpqua Trail section #1414, Cascadia explained: Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 31 of 45 Page 23 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR The EA also never considered if the road construction and maintenance in Unit 302 would adversely impact the public’s recreational enjoyment of the North Umpqua Trail. The North Umpqua Trail runs directly beneath and behind Unit 302. The noise and pollution from the road construction and maintenance in Unit 302 will disrupt the ability of walkers, runners, hikers, and cyclists to enjoy the natural views and scenery along the Trail. The unit is visible from the Trail, and any construction will be visible and loud. The EA’s description of the visual impacts to the trail is substantially brief. Referring to the visual quality objectives (VQO) for the North Umpqua Trail #1414, the Forest Service explains that the area “would be managed to meet Partial Retention VQO’s . . . All four units are on higher ground from the trail.” This is the only discussion of the management of this section of the trail. There is no inclusion of specifics of how the VQO’s will be met. The prescriptions for the units contain a range of the number of TPA that will be retained. The flagging laying out the road for unit 302 shows the road going through multiple large and tall trees. The Forest Service response that “Trail 1414 would not be affected visually because unit 302 is on a high bluff” is inadequate. Ground visits both through the unit and the trail lead us to disagree with this statement. AR 12758; see also AR 11075. Cascadia also expressed concern about impacts to important hydrological features in and near the North Umpqua Trail: Further, several remarkable hydrological features occur along this section of the Trail, such as waterfalls, gushing springs, and natural runoff flows through rock columns and moss down from the unit right next to the Trail. The road construction and maintenance could affect the quality of these water features by destroying, disrupting, or polluting them. This section of the Trail also has hike-in camping areas between it and the river, which are often used. The Forest Service should do nothing in this area that has the potential of disrupting this unique area and its vast recreational opportunities and visitors. Id. The objection responses state that the 2013 response to comments determined that the units will not be visible from the hot springs due to the topography and trees. AR 12853. This response, however, merely repeats statements in the EA. AR 12414. These statements are conclusory, and unsupported by any modeling, photographs or reports, and explicitly contradict Cascadia’s observations during site-visits. Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 32 of 45 Page 24 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR The response to public comments goes further than the objection response suggests, however, in stating that the “tops of a few trees may be removed from view” but that this is “unlikely.” AR 11906. It is unclear whether this refers to the impacts to the view from the North Umpqua Trail immediately below Units 302 and 303, or if it refers to the view from the Umpqua Hot Springs. In either case, the Forest Service still failed to provide an explanation as to how the visual objectives will be met. The Visual Quality Objectives (“VQO”) for units 303 and 302 are identified as partial retention and the suggested range of opening size are “to be specified under site- specific analysis.” AR 12414. The Forest Service did not conduct such analysis, stating only that the silvicultural prescriptions will meet the visual quality objectives and the topography of the canyon will diminish the project’s impact. The Forest Service also suggests that “[b]ecause C4-III would borrow form, line, color and texture common in the historical characteristic of the landscape, it meets Partial Retention VQOs . . . .” AR 12414. These statements do not provide how these design features will diminish the impacts, only that they will. LaFemme v. F.E.R.C., 852 F.2d 389, 399 (9th Cir. 1988) (“an agency must explain exactly how the measures will mitigate the project’s impacts.”). None of these explanations provides an analysis of the impacts to the visuals of the units from the North Umpqua Trail or the Umpqua Hot Springs. Units 302 and 303 are directly across the North Umpqua River from the Umpqua Hot Springs, one of the most popular areas in the Umpqua National Forest, and yet there is no mention of what characteristics of the topography in this part of the river would be so extreme as to shield the units from view. The Forest Service also failed to clearly discuss how the project design features noted Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 33 of 45 Page 25 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR above will impact the visuals from the North Umpqua Trail. The EA identified project design features related to trees cut within 50 feet of the Dread and Terror Ridge Trail–trail 1461–which would require stumps to be cut low (6 to 8 inches), and existing trails to be rehabilitated to pre-logging condition. AR 12274. There are no such specifications for the unit 302, above trail 1414. The proffered characteristics to meet visual quality objectives are not provided in sufficient detail as to constitute any explanation as to the effects on the visuals from the trail. The conclusion that VQOs will be met does not stem from any discussion of the effects to the visual resources. Instead, the Forest Service continually offers conclusions with no supporting data or analysis, in violation of NEPA. Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998) (general statements about effects do not constitute a “hard look” under NEPA). This does not meet NEPA’s requirement that the Forest Service disclose and analyze the direct and indirect effects of its actions. The Forest Service has failed to provide a reasoned basis for its conclusions and as such its conclusions are arbitrary, capricious, and not in accordance with law. 5 U.S.C. § 706(2)(A). II. The Loafer Project’s effects are significant, and an Environmental Impact Statement is required. NEPA requires the Forest Service to prepare an EIS when it proposes a major federal action that may significantly affect the quality of the environment. 42 U.S.C. § 4332(2)(C); Blue Mtns. Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (“[A] ‘plaintiff need not show that significant effects will in fact occur….’ It is enough for the plaintiff to raise ‘substantial questions whether a project may have a significant effect’ on the environment.”) (citation omitted). If a plaintiff raises substantial questions regarding Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 34 of 45 Page 26 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR whether a project may have a significant effect on the environment, “a decision not to prepare an EIS is unreasonable.” Blackwood, 161 F.3d at 1211 (citing Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988)). “If an agency decides not to prepare an EIS, it must supply a ‘convincing statement of reasons to explain why a project’s impacts are insignificant.’” Id. “Indeed, ‘the statement of reasons is crucial’ to determining whether the agency took a ‘hard look’ at the potential environmental impact of a project.” Save the Yaak, 840 F.2d at 717. In determining whether a proposed action may “significantly” impact the environment such that an EIS is required, both the context and intensity of the action must be considered. 40 C.F.R. § 1508.27. In evaluating intensity, the agency must consider numerous “significance” factors. 40 C.F.R. §§ 1508.27(b)(1)-(b)(10). The presence of any single significance factor can trigger the requirement to prepare an EIS, Ctr. for Biological Diversity, 538 F.3d at 1220 (“an action may be ‘significant’ if one of these factors is met”), and several significance factors considered cumulatively can also trigger the requirement to prepare an EIS. Cascadia Wildlands, 937 F. Supp. 2d at 1283. Here, the Forest Service refused to prepare an EIS for the Loafer Project despite the presence of several significance factors indicating possible significant environmental consequences of the proposed action. These deficiencies–both individually and in combination–indicate that an EIS is required before the Loafer Project can be implemented. a. The Loafer Project may have adverse effects on the northern spotted owl, a threatened species under the ESA. The Loafer Project EA and DN/FONSI contemplate significant adverse effects to the northern spotted owl–a species listed as threatened under the ESA, AR 10698–and its Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 35 of 45 Page 27 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR critical habitat. Consequently, FWS determined that the Loafer Project EA and DN/FONSI are “likely to adversely affect the threatened northern spotted owl (Strix occidentalis caurina) (spotted owl), as well as its proposed revised critical habitat.”12 AR 10356. The Loafer Project DN/FONSI, however, found no significance based on effects to the northern spotted owl and its critical habitat because in the Forest Supervisor’s opinion, the effects to the northern spotted owl and its critical habitat “will not have a significant effect.” AR 12607. This determination was based on the fact that while FWS made a likely to adversely affect determination, FWS also concluded that “the [Loafer] [P]roject is not likely to jeopardize the continued existence of the spotted owl and its critical habitat.” AR 12608. This determination, however, erroneously conflates NEPA’s requirement to assess impacts to spotted owls on the individual level with the ESA’s requirement that a project not jeopardize the existence of a species as a whole. Oregon Wild v. Bureau of Land Mgmt., 2015 WL 1190131, at *10 (D. Or. March 14, 2015) (“[T]he Ninth Circuit recognized that species viability is the relevant standard for assessing a project under the [ESA], but the standard is adverse effect under NEPA.”) (citing Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1012 (9th Cir. 2006)). The determination further ignores the Project’s significant impacts on the northern spotted owl and its critical habitat. The Forest Service cannot diminish the significance of its actions by focusing only on whether its actions will “jeopardize” listed species as a whole. Oregon Wild, 2015 WL 1190131, at *10 (“‘a project need not jeopardize 12 The FWS Biological Opinion was released before the final northern spotted owl critical habitat designation was complete. See AR 10356. After the proposed critical habitat was formally designated in 2012, the FWS confirmed that its original August 2012 Biological Opinion still applied and was in effect regarding the effects of the Loafer Project on the newly designated northern spotted owl critical habitat. AR 10795. Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 36 of 45 Page 28 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR the continued existence of a threatened or endangered species to have a ‘significant’ effect’ for the purposes of NEPA”) (citation omitted). NEPA requires the Forest Service to analyze the significance of the “degree to which the action may adversely affect an endangered or threatened species.” 40 C.F.R. 1508.27(b)(9). The DN/FONSI fails entirely in this regard. The Loafer Project will have significant adverse effects on the northern spotted owl and its critical habitat. The Forest Service determined that the Loafer Project is likely to adversely affect the northern spotted owl and its critical habitat. AR 10735. FWS agreed with this determination. AR 10356. The agencies based these determinations on the significant effects of the Loafer Project, including that the Project would “remove/downgrade 908 acres of NRF [nesting, roosting, and foraging habitat] and 522 acres of dispersal-only habitat.” AR 10400. FWS explained that “the management objectives for the treated areas make it unlikely these locations will develop into high quality NRF [nesting, roosting, and foraging] habitat.” Id. This is because “the open, pine-dominated stand conditions sought will reduce canopy cover to below 40 percent canopy cover for a portion of the dispersal habitat and to below the 60-70 percent canopy cover suggested in providing for NRF habitat.” Id. The ultimate result of this is that “[s]potted owls are expected to be displaced and/or avoid … areas where NRF and/or dispersal habitat is removed/downgraded.” Id. As to the specific effects to spotted owl critical habitat, FWS explained it believe[s] that that the loss of 906 acres of NRF and 511 acres of dispersal habitat within … spotted owl critical habitat will have a measureable reduction in spotted owl life history functions at the 500 acre scale and therefore [is] likely to adversely affect … critical habitat. This measurable reduction is due to the quantity of habitat lost, the anticipated 10-50 year temporal period of loss, reduced prey availability, and edge effects. Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 37 of 45 Page 29 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR AR 10409. Not only does the proposed logging affect spotted owl habitat, but also significantly affects habitat for spotted owl primary prey such as the northern flying squirrel. AR 10402. Such primary prey species “will likely avoid harvested NRF habitat areas.” AR 10403. The proposed fire activities in the Loafer Project will also cause “short and long-term negative and beneficial effects to spotted owl prey species.” AR 10405. As part of the ESA Section 7 consultation process, FWS issued an incidental take statement allowing the Forest Service to take four northern spotted owls as part of the implementation of the Loafer Project. AR 10411. FWS explained “[i]ncidental take is anticipated because the effects of the proposed action … are expected to harm one spotted owl pair and up to two juveniles because the amount of NRF habitat removed and its proximity to anticipated nest locations is expected to measurably reduce the likelihood of that pair successfully reproducing.” Id. These impacts are not short term, but rather the impacts are “expected to last multiple years,” especially in areas where “redevelopment of [NRF habitat] is not part of the goals of the proposed action.” Id. The Loafer Project’s effects on the northern spotted owl and its critical habitat are significant, cause adverse effects to the northern spotted owl and its critical habitat, and were required to have been analyzed in an EIS to fully assess the effects of the project. 40 C.F.R. §1508.27(b)(9). b. The Loafer Project's effects are likely to be highly controversial, highly uncertain, or involve unique or unknown risks. NEPA requires the preparation of an EIS when the effects of federal action are “highly controversial,” 40 C.F.R. § 1508.27(b)(4), or “highly uncertain or involve unique or Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 38 of 45 Page 30 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR unknown risks,” 40 C.F.R. § 1508.27(b)(5). Here, the Loafer Project EA and DN/FONSI present highly controversial and highly uncertain effects that involve unique or unknown risks. As the Ninth Circuit has observed, “a project is ‘highly controversial’ if there is a ‘substantial dispute [about] the size, nature, or effect of the major Federal action rather than the existence of opposition to a use.’” Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1240 (9th Cir. 2005) (citing Blackwood, 161 F.3d at 1212). Comments “from conservationists, biologists, and other knowledgeable individuals … critical of the EA” and FONSI demonstrate that a project is highly controversial. Sierra Club v. U.S. Forest Serv., 843 F.2d 1190, 1193-94 (9th Cir. 1988) (quoting Found. for N. Am. Wild Sheep, 681 F.2d at 1182). Here, the Loafer Project raises significant controversy regarding the effects of the proposed action, including related to the effects of logging in riparian reserves, logging in mature–more than 80 year-old–forests, and the effects to the unique hydrology of the area. Additionally, because–as discussed supra–certain important information such as stand age and trees per acre was not disclosed during the NEPA process, the effects of the Loafer Project’s logging is inherently uncertain. As such, the public does not know how much logging will occur in old-growth and mature forest stands within the Project area. One controversial aspect of the Loafer Project involves using fire to restore human- created meadows, which the Forest Service itself admits is significantly controversial. See AR 12367 (“The question of whether anthropogenic fire should be considered ‘natural’ is hotly (no pun intended) debated.”). The Forest Service identified conditions displayed from a 1946 map as its reference conditions for the Loafer planning area landscape. AR 12285. These Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 39 of 45 Page 31 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR conditions “were previously maintained through frequent natural and human-caused fires” and “today, stands that were previously maintained in early seral or stand initiation successional stages are now mostly mature forest, with scattered large legacy trees.” Id. Natural and anthropogenic use of fire are difficult to distinguish from one another. AR 12367. The EA concludes “regardless of the cause, it is obvious that fire has played a key role in the flats of the planning area and probably has for centuries, perhaps even thousands of years.” AR 12367. The Forest Service went on to state “considering that native cultures have used and managed this area for many centuries, if not thousands of years, it is likely that flora and fauna coevolved with this anthropogenic disturbance regime.” Id. As the Forest Service acknowledges, whether anthropogenic fire should be considered “natural” is controversial. See AR 12367. By choosing to use a condition that has been maintained by human activity, the Forest Service discounted the value of the current succession processes within the project area. By choosing a reference condition that is based on photographic evidence that is less than 100 years old and maintained by anthropogenic forces, the Forest Service bases the project on promoting conditions that are arguably unnatural in the current vegetation regime. The Forest Service failed to provide a logical explanation as to why a landscape that is currently providing important wildlife habitat–indeed, critical habitat for a threatened species–should be altered to meet conditions that were created by humans. This failure significantly added to the controversial nature of the Loafer Project. The Loafer Project EA and DN/FONSI inherently “involve unique or unknown risks,” 40 C.F.R. § 1508.27(b)(5). These highly controversial and highly uncertain effects Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 40 of 45 Page 32 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR involving unique or unknown risks indicate that there may be significant effects to the environment such that an EIS is required. Blackwood, 161 F.3d at 1212; 40 C.F.R. § 1508.27(b)(1); 40 C.F.R. § 1508.27(b)(4); 40 C.F.R. § 1508.27(b)(5). c. The Loafer Project will be implemented in geographic areas with unique characteristics, including proximity to ecologically critical areas. The Loafer Project would lead to logging and road construction in or near areas with “unique characteristics,” including in areas with proximity to ecologically critical areas. 40 C.F.R. §1508.27(b)(3). As discussed supra, all logging units are within designated northern spotted owl critical habitat, which qualifies as an ecologically critical area. AR 10655. Further, the Loafer Project contemplates logging and road construction in the Dread and Terror and Thorn Prairie undeveloped areas. AR 12406, 12411. Such undeveloped areas qualify for Wilderness designation by Congress, AR 12411, are part of the Crater Lake Wilderness proposal, AR 12406, and therefore qualify as ecologically critical areas. Finally, the Loafer Project contemplates logging in Riparian Reserves.13 AR 12424. Because of the importance of Riparian Reserves–as identified in the Northwest Forest Plan, AR 12243, 12422-27–they qualify as ecologically critical areas. Because the Loafer Project would be implemented in or near areas with “unique characteristics,” including proximity to ecologically critical areas, the Forest Service should have prepared an EIS to fully analyze the impacts of the Project. 40 C.F.R. § 1508.27(b)(3). // 13 “Riparian areas are water dependent systems that consist of lands along, adjacent to, or contiguous with streams, rivers, and wetland systems. Riparian ecosystems are the ecological links between uplands and streams, and terrestrial and aquatic components of the landscape. Many riparian areas have wetlands associated with them.” AR 12422. Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 41 of 45 Page 33 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR d. The Loafer Project’s direct and cumulative impacts are significant. The Loafer Project demonstrably may have significant direct and cumulative impacts. Significant impacts “may be both beneficial and adverse” and that a “significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.” 40 C.F.R. § 1508.27(b)(1). As discussed supra, the Loafer Project contemplates significant direct and cumulative impacts to a variety of resources, including the northern spotted owl and its critical habitat, the Dread and Terror and Thorn Prairie undeveloped areas, and the visual and recreational resources within the Project area. The direct, indirect, and cumulative effects of the Forest Service’s proposed action are significant individually and significant cumulatively, and indicate that there may be significant effects to the environment such that an EIS is required. Blackwood, 161 F.3d at 1212; 40 C.F.R. § 1508.27(b)(1); 40 C.F.R. § 1508.27(b)(7). e. The Loafer Project may establish a precedent for future actions. Agency action may be significant based on the “degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.” 40 C.F.R. § 1508.27(b)(6). “The purpose of that section is to avoid the thoughtless setting in motion of a ‘chain of bureaucratic commitment that will become progressively harder to undo the longer it continues.’” Presidio Golf Club v. Nat’l Park Serv., 155 F.3d 1153, 1162-63 (9th Cir. 1998) (internal citation omitted). Typically, “EAs are usually highly specific to the project and the locale, thus creating no binding precedent,” See Town of Cave Creek v. FAA, 325 F.3d 320, 332 (D.C. Cir. 2003), but the Ninth Circuit has held that some actions documented in an EA can have precedential effect that Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 42 of 45 Page 34 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR requires preparing an EIS. Anderson v. Evans, 314 F.3d 1006, 1021-22 (9th Cir. 2002) opinion amended and superseded on denial of reh’g, 371 F.3d 475 (9th Cir. 2004). The Loafer Project may establish precedent for future actions on the Umpqua National Forest, including logging and road construction in undeveloped and unroaded areas and logging in newly designated critical habitat for the northern spotted owl. Here, the Forest Service proposes to log and construct roads in important undeveloped and unroaded areas on the Umpqua National Forest. The Forest Service admits that the logging will render these areas unsuitable for Wilderness designation. AR 12411. The Loafer Project could set a precedent for management of undeveloped and unroaded areas across the Umpqua National Forest as it precludes future discretion to designate these areas as Wilderness, and also encourages additional logging in similar undeveloped and unroaded areas elsewhere on the Forest. Additionally, because new northern spotted owl critical habitat was designated during the development of the Loafer Project, AR 10713, the Loafer Project may establish a precedent for future logging in northern spotted owl critical habitat. Although this significance factor may not on its own require the preparation of an EIS, at a minimum it adds to the significance of the project as a whole and counsels preparation of an EIS when considered in combination with the other significance factors. An EIS should address this precedent-setting activity. 40 C.F.R. § 1508.27(b)(6). CONCLUSION For these reasons, the Court should grant Cascadia’s motion for summary judgment, issue declaratory and injunctive relief enjoining the Forest Service’s implementation of the Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 43 of 45 Page 35 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR Loafer Project pending compliance with the law, and vacate both the Loafer Project EA and DN/FONSI. Respectfully submitted and dated this 31st day of October, 2016. /s/ John R. Mellgren JOHN R. MELLGREN (OSB # 114620) Western Environmental Law Center 1216 Lincoln Street Eugene, Oregon 97401 Ph: (541) 359-0990 mellgren@westernlaw.org Attorney for Plaintiffs /s/ Robin M. Meacher ROBIN M. MEACHER (OSB # 143851) Cascadia Wildlands P.O. Box 10455 Eugene, Oregon 97440 Ph: (541) 434-1463 robin@cascwild.org Attorney for Plaintiff Cascadia Wildlands Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 44 of 45 Page 36 – Plaintiffs’ Motion for Summary Judgment, No. 6:16-cv-01095-JR CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the District of Oregon by using the Court’s CM/ECF system on October 31, 2016. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the District Court’s CM/ECF system. /s/ John R. Mellgren JOHN R. MELLGREN (OSB # 114620) Western Environmental Law Center 1216 Lincoln Street Eugene, Oregon 97401 Ph. (541) 359-0990 Fax (541) 485-2457 mellgren@westernlaw.org Attorney for Plaintiffs Case 6:16-cv-01095-JR Document 26 Filed 10/31/16 Page 45 of 45