Conservation Congress v. United States Forest Service et Al.

MOTION for SUMMARY JUDGMENT

E.D. Cal.September 9, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOHN C. CRUDEN Assistant Attorney General United States Department of Justice Environment & Natural Resources Division TYLER L. BURGESS, Cal. Bar No. 308701 Natural Resources Section PO Box 7611 Washington, DC 20044-7611 Tel: (202) 616-4119 / Fax: (202) 305-0506 Email: tyler.burgess@usdoj.gov SETH M. BARSKY, Chief S. JAY GOVINDAN, Assistant Chief ANDREA GELATT, Cal. Bar No. 262617 Wildlife & Marine Resources Section PO Box 7611 Washington, DC 20044-7611 Tel: (202) 305-0210 / Fax: (202) 305-0275 Email: andrea.gelatt@usdoj.gov Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION CONSERVATION CONGRESS, Plaintiff, v. UNITED STATES FOREST SERVICE and UNITED STATES FISH AND WILDLIFE SERVICE, Federal Defendants, and TRINITY RIVER LUMBER CO., Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 2:13-CV-01977-JAM-DB FEDERAL DEFENDANTS’ NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT Date: Dec. 13, 2016 Time: 1:30 p.m. Courtroom: 6 Hon. John A. Mendez Case 2:13-cv-01977-JAM-DB Document 106 Filed 09/09/16 Page 1 of 4 FED. DEFS.’ NOTICE OF MOT. AND CROSS-MOT. FOR SUMM. J. 1 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT Notice is hereby given that Federal Defendants’ cross-motion for summary judgment, filed herein, will be brought for hearing before the Honorable John A. Mendez, on Tuesday, December 13, 2016, at 1:30 p.m., in Courtroom No. 6, 501 I Street, Sacramento, California. Federal Defendants, the U.S. Forest Service and the U.S. Fish and Wildlife Service, hereby cross-move for summary judgment on all claims in the captioned litigation in accordance with Fed R. Civ. P. 56 and Civil L.R. 56-1. The Services complied with all applicable laws including, but not limited to, the Endangered Species Act, the National Forest Management Act, and the National Environmental Policy Act, in approving the Smokey Project on the Mendocino National Forest, Grindstone Ranger District. Moreover, Plaintiff has not demonstrated that it is entitled to declaratory or injunctive relief. This Motion is based on the Notice of Motion and Motion, as well as the accompanying Federal Defendants’ Memorandum in Support of Cross- Motion for Summary Judgment and in Opposition to Plaintiff’s Motion for Summary Judgment. Respectfully submitted this 9th day of September, 2016. JOHN C. CRUDEN Assistant Attorney General United States Department of Justice Environment & Natural Resources Division TYLER L. BURGESS, Cal. Bar No. 308701 Trial Attorney Natural Resources Section PO Box 7611 Washington, DC 20044-7611 Tel: (202) 616-4119 / Fax: (202) 305-0506 Email: tyler.burgess@usdoj.gov SETH M. BARSKY, Chief S. JAY GOVINDAN, Assistant Chief /s/ Andrea Gelatt ANDREA GELATT, Cal. Bar No. 262617 Trial Attorney Wildlife & Marine Resources Section Case 2:13-cv-01977-JAM-DB Document 106 Filed 09/09/16 Page 2 of 4 FED. DEFS.’ NOTICE OF MOT. AND CROSS-MOT. FOR SUMM. J. 2 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PO Box 7611 Washington, DC 20044-7611 Tel: (202) 305-0210 / Fax: (202) 305-0275 Email: andrea.gelatt@usdoj.gov Attorneys for Federal Defendants Case 2:13-cv-01977-JAM-DB Document 106 Filed 09/09/16 Page 3 of 4 FED. DEFS.’ NOTICE OF MOT. AND CROSS-MOT. FOR SUMM. J. 3 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 9, 2016, I filed the foregoing document electronically through the CM/ECF system, which caused all parties or counsel of record to be served by electronic means, as more fully reflected on the Notice of Electronic Filing. /s/ Andrea Gelatt Andrea Gelatt U.S. Department of Justice Case 2:13-cv-01977-JAM-DB Document 106 Filed 09/09/16 Page 4 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOHN C. CRUDEN Assistant Attorney General United States Department of Justice Environment & Natural Resources Division TYLER L. BURGESS, Cal. Bar No. 308701 Natural Resources Section PO Box 7611 Washington, DC 20044-7611 Tel: (202) 616-4119 / Fax: (202) 305-0506 Email: tyler.burgess@usdoj.gov SETH M. BARSKY, Chief S. JAY GOVINDAN, Assistant Chief ANDREA GELATT, Cal. Bar No. 262617 Wildlife & Marine Resources Section PO Box 7611 Washington, DC 20044-7611 Tel: (202) 305-0210 / Fax: (202) 305-0275 Email: andrea.gelatt@usdoj.gov Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION CONSERVATION CONGRESS, Plaintiff, v. UNITED STATES FOREST SERVICE and UNITED STATES FISH AND WILDLIFE SERVICE, Federal Defendants, and TRINITY RIVER LUMBER CO., Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 2:13-CV-01977-JAM-DB FEDERAL DEFENDANTS’ MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 103] Date: Dec. 13, 2016 Time: 1:30 p.m. Courtroom: 6 Hon. John A. Mendez Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 1 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. ii Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GLOSSARY OF ACRONYMS AC Activity Center APA Administrative Procedure Act BA Biological Assessment BiOp Biological Opinion DN/FONSI Decision Notice/Finding of No Significant Impact EA Environmental Assessment EIS Environmental Impact Statement ESA Endangered Species Act FWS U.S. Fish and Wildlife Service HFRA Healthy Forests Restoration Act ITS Incidental Take Statement (part of BiOp) LOP Limited Operating Period LSR Late Successional Reserves NEPA National Environmental Policy Act NFMA National Forest Management Act NSO Northern spotted owl SIR Supplemental Information Report SPLAT Strategically Placed Land Area Treatments Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 2 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. iii Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS INTRODUCTION ......................................................................................................................... 1 STATUTORY BACKGROUND................................................................................................... 2 I. The National Environmental Policy Act. ........................................................................... 2 II. The National Forest Management Act. .............................................................................. 3 III. The Healthy Forest Restoration Act. ................................................................................. 3 IV. The Endangered Species Act. ............................................................................................ 4 FACTUAL BACKGROUND ........................................................................................................ 5 I. The Smokey Project. .......................................................................................................... 5 II. The NEPA Process. ............................................................................................................ 7 III. The ESA Consultation. ...................................................................................................... 8 STANDARD OF REVIEW ......................................................................................................... 11 ARGUMENT ............................................................................................................................... 12 I. The Project Comports with NEPA. ................................................................................... 12 A. The Forest Service Insured the Scientific Integrity of the Project’s NEPA Analysis................................................................................................................. 12 B. The Project’s Purpose and Need Statement is Sufficiently Broad and the Forest Service Evaluated an Adequate Range of Alternatives. ............................ 14 C. The Forest Service Correctly Determined that No EIS is Required. .................... 17 1. The Project’s Impacts on NSO are Not Significant and Do Not Warrant an EIS. ......................................................................................... 17 2. The Project is Consistent with the Forest Plan and Does Not Violate NFMA. ......................................................................................... 19 3. The Project’s Cumulative Effects Analysis Complies with NEPA. ....................................................................................................... 21 4. The Project’s Effects are Not Highly Uncertain. ...................................... 22 5. The Project’s Effects are Not Highly Controversial. ................................ 23 Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 3 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. iv Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. The Project’s Proximity in the Buttermilk LSR Does Not Require an EIS. ......................................................................................... 24 D. The Forest Service Correctly Concluded in its Supplemental Information Report that No Further NEPA Analysis is Required. ........................................... 25 II. The Biological Opinion is Consistent with the ESA and Must Be Upheld. ..................... 26 III. Plaintiff is Not Entitled to Injunctive Relief. .................................................................... 29 CONCLUSION ............................................................................................................................ 30 Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 4 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. v Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES PAGE Aluminum Co. of Am. v. Bonneville Power Admin., 175 F.3d 1156 (9th Cir. 1999) .......................................................................................... 29 Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004) ...................................................................................... 23, 24 Arkansas v. Oklahoma, 503 U.S. 91 (1992) ............................................................................................................ 11 Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87 (1983) ...................................................................................................... 11, 18 Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) .......................................................................................... 23 Buckeye Forest Council v. U.S. Forest Serv., 337 F. Supp. 2d 1030 (S.D. Ohio 2004) ........................................................................... 19 Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936 (9th Cir. 2010) ............................................................................................ 28 Cal. Native Plant Soc’y v. EPA, No. 06-03604-MJJ, 2007 WL 2021796 (N.D. Cal. July 10, 2007) .................................. 26 Cascadia Wildlands v. Thrailkill, 49 F. Supp. 3d 774 (D. Or. 2014) ..................................................................................... 27 Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961 (9th Cir. 2003) .............................................................................................. 3 City of Carmel-By-The-Sea v. U.S. Dep't of Transp., 123 F.3d 1142 (9th Cir. 1997) .......................................................................................... 15 Coleman v. District of Columbia, 794 F.3d 49 (D.C. Cir. 2015) ............................................................................................ 24 Conservation Cong. v. Finley, 774 F.3d 611 (9th Cir. 2014) ............................................................................................ 27 Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048 (9th Cir. 2013) .......................................................................................... 28 Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 5 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. vi Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Decker v. U.S. Forest Serv., 780 F. Supp. 2d 1170 (D. Colo. 2011) .................................................................... 4, 11, 12 eBay Inc. v. MercExchange, 547 U.S. 388 (2006) .................................................................................................... 29, 30 Ecology Ctr. v. Castaneda, 574 F.3d 652 (9th Cir. 2009) ............................................................................................ 20 Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir. 2006) .......................................................................... 3, 18, 19, 22 Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) .......................................................................................................... 24 Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089 (9th Cir. 2003) ............................................................................................ 3 Fund for Animals, Inc. v. Rice, 85 F.3d 535 (11th Cir. 1996) ............................................................................................ 19 Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257 (10th Cir. 2004) ........................................................................................ 19 Half Moon Bay Fishermans’ Mktg. Ass'n v. Carlucci, 857 F.2d 505 (9th Cir. 1988) ............................................................................................ 12 Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754 (9th Cir. 1996) ................................................................................................ 3 Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072 (9th Cir. 2006) .................................................................................... 27, 28 Klamath Siskiyou Wildlands Ctr. v. Grantham, 424 F. App’x 635 (9th Cir. 2011) ............................................................................... 24, 25 Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989 (9th Cir. 2004) ............................................................................................ 22 Kleppe v. Sierra Club, 427 U.S. 390 (1976) .......................................................................................................... 21 League of Wilderness Defs. Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122 (9th Cir. 2010) ............................................................................................ 2 League of Wilderness Defs.-Blue Mountains Biodiversity Project v. U.S. Forest Serv., 689 F.3d 1060 (9th Cir. 2012) .................................................................................... 12, 13 Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 6 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. vii Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989) .......................................................................................................... 11 Monsanto v. Geertson Seed Farms, 560 U.S. 139 (2010) .......................................................................................................... 30 Nat. Res. Def. Council v. Kempthorne, 506 F. Supp. 2d 322 (E.D. Cal. 2007)............................................................................... 30 Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005) ........................................................................ 18, 19, 22, 23 Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) .......................................................................................................... 23 Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722 (9th Cir. 2001) ............................................................................................ 18 Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163 (9th Cir. 2004) .......................................................................................... 23 Nat. Res. Def. Council, Inc. v. U.S. Forest Serv., 634 F. Supp. 2d 1045 (E.D. Cal. 2007)............................................................................. 15 Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002) .......................................................................................... 21 Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998) ............................................................................................................ 3 Presidio Golf Club v. Nat'l Park Serv., 155 F.3d 1153 (9th Cir. 1998) .......................................................................................... 25 Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of Navy, 898 F.2d 1410 (9th Cir. 1990) .......................................................................................... 29 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ............................................................................................................ 2 Rock Creek Alliance v. U.S. Fish & Wildlife Serv., 663 F.3d 439 (9th Cir. 2011) ............................................................................................ 26 San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014) ...................................................................................... 11, 27 Sw. Ctr. for Biological Diversity, 143 F.3d ............................................................................................................................ 29 Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 7 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. vii i Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Terbush v. United States, 516 F.3d 1125 (9th Cir. 2008) .......................................................................................... 20 Trout Unlimited v. Lohn, 559 F.3d 946 (9th Cir. 2009) ............................................................................................ 26 United States v. McKittrick, 142 F.3d 1170 (9th Cir. 1998) .......................................................................................... 26 Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519 (1978) ...................................................................................................... 2, 11 Wasco Prod., Inc. v. Southwall Techs., Inc., 435 F.3d 989 (9th Cir. 2006) ............................................................................................ 12 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) .......................................................................................................... 29 WildWest Inst. v. Bull, 547 F.3d 1162 (9th Cir. 2008) ............................................................................................ 4 STATUTES 16 U.S.C. § 1531 ............................................................................................................................. 1 16 U.S.C. § 1531(b) ........................................................................................................................ 4 16 U.S.C. § 1533(a)(3)(A) .............................................................................................................. 4 16 U.S.C. § 1533(f) ....................................................................................................................... 26 16 U.S.C. § 1536(a)(2) .................................................................................................................... 4 16 U.S.C. § 1536(b)(3)(A) .............................................................................................................. 5 16 U.S.C. § 1536(b)(4) ................................................................................................................... 5 16 U.S.C. § 1536(o)(2) ................................................................................................................... 5 16 U.S.C. § 1600 ............................................................................................................................. 1 16 U.S.C. § 1604 ............................................................................................................................. 3 16 U.S.C. § 1604(g)(1)-(3) ............................................................................................................. 3 16 U.S.C. § 1604(i) ......................................................................................................................... 3 16 U.S.C. § 6501(1) ........................................................................................................................ 3 Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 8 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. ix Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 U.S.C. § 6512(a)(5) ................................................................................................................ 1, 4 16 U.S.C. § 6514(a)(1) .................................................................................................................... 4 16 U.S.C. § 6514(c) .................................................................................................................. 4, 15 16 U.S.C. § 6514(c)(1) .................................................................................................................. 15 16 U.S.C. § 6515(c) ........................................................................................................................ 7 16 U.S.C. § 6515(c)(1) .................................................................................................................. 15 42 U.S.C. § 4321 ............................................................................................................................. 1 42 U.S.C. § 4332(2)(C) ............................................................................................................. 2, 18 5 U.S.C. §§ 701-06 ....................................................................................................................... 11 FEDERAL REGULATIONS 36 C.F.R. Part 218........................................................................................................................... 7 40 C.F.R. 1502.14(a)............................................................................................................... 15, 16 40 C.F.R. § 1501.4(b) ..................................................................................................................... 3 40 C.F.R. § 1502.18 ...................................................................................................................... 13 40 C.F.R. § 1502.21 ...................................................................................................................... 13 40 C.F.R. § 1508.27 ...................................................................................................................... 18 40 C.F.R. § 1508.27(b)(10) ........................................................................................................... 19 40 C.F.R. § 1508.27(b)(3) ............................................................................................................. 24 40 C.F.R. § 1508.27(b)(4) ............................................................................................................. 23 40 C.F.R. § 1508.27(b)(5) ............................................................................................................. 22 40 C.F.R. § 1508.27(b)(9) ............................................................................................................. 18 40 C.F.R. § 1508.7 ........................................................................................................................ 21 40 C.F.R. § 1508.9 .......................................................................................................................... 3 40 C.F.R. §§ 1500-1508 .................................................................................................................. 2 Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 9 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. x Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 50 C.F.R. § 402.12(a)...................................................................................................................... 5 50 C.F.R. § 402.12(f) .................................................................................................................... 28 50 C.F.R. § 402.14(i) ...................................................................................................................... 5 50 C.F.R. § 402.16 .......................................................................................................................... 5 50 C.F.R. §§ 402.13 ........................................................................................................................ 5 50 C.F.R. §§ 402.14 ........................................................................................................................ 5 77 Fed. Reg. 71876 (Dec. 4, 2012) ................................................................................................. 8 Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 10 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 1 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION In 2003, Congress enacted the Healthy Forest Restoration Act (“HFRA”) directing federal agencies to implement hazardous fuel reduction projects on federal land containing threatened or endangered species where wildfire has been identified as a threat to those species. 16 U.S.C. § 6512(a)(5). Under this authority, the U.S. Forest Service (“Forest Service”) designed the Smokey Project (“Project”) to improve habitat for the northern spotted owl (“NSO” or “owl”) on the Mendocino National Forest. The Project takes an active approach to managing fire risk to owl habitat, which is recommended in the U.S. Fish and Wildlife Service’s (“FWS”) 2011 Revised Recovery Plan for the Northern Spotted Owl (“2011 Recovery Plan”), see FS-18992, in part, because the primary source of habitat loss for the owl is catastrophic wildfire. FS-4251.1 Plaintiff, Conservation Congress, disagrees with this active management approach and challenges the Forest Service’s final Environmental Assessment (“EA”) and Decision Notice and Finding of No Significant Impact (“DN/FONSI”) for the Project under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.; the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq.; and the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., and FWS’s related Project approvals under the ESA. Plaintiff’s claims, however, are flawed because the Project comports with applicable law. The purpose and need of the Project—to move the area towards the Mendocino National Forest Land and Resource Management Plan’s (“Forest Plan”) desired conditions with respect to wildlife, fire, and timber goals—is sufficiently broad. And the Forest Service evaluated alternatives consistent with its authority under the HFRA. Moreover, an Environmental Impact Statement (“EIS”) was not required because the Forest Service reasonably concluded that the Project’s environmental impacts would not be significant. Nor does the Project violate NFMA because it is consistent with the Forest Plan’s direction on spotted owl and the 2011 Recovery Plan. Additionally, the Services followed their duties under the ESA to carefully evaluate the 1 Federal Defendants cites to the Services’ administrative records lodged with the Court on December 11, 2015 (ECF No. 73) as “FS-” for the Forest Service’s record and “FWS-” for the FWS’s record followed by the applicable Bates page number. Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 11 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 2 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Project and FWS ultimately determined that the Project would not adversely modify or destroy the owl’s critical habitat and would not jeopardize the continued existence of the owl because any adverse impacts are expected to be short-term. In fact, the Project is intended to improve owl habitat in the long-term by facilitating the development of the mature forest preferred by spotted owls. Plaintiff’s arguments boil down to a policy dispute regarding whether it is better to leave an overstocked forest at risk of catastrophic wildlife, or treat the forest to improve habitat conditions and fire resilience. The Forest Service considered the no-action alternative, but concluded that the proposed action is preferable because it will benefit wildlife habitat for the owl and other species, reduce wildfire risk, reduce the risk of large-scale insect attacks, develop late successional forest characteristics, and provide timber to the local economy. FS-11. This type of scientific judgment is well within the specialized expertise of the Forest Service and the Court should reject Plaintiff’s invitation to second-guess the agency’s judgment here. See League of Wilderness Defs. Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1134 (9th Cir. 2010) (“[W]here the Forest Service has determined that stand treatments are clearly needed to reduce risks [and] will clearly result in greater assurance of long term maintenance of habitat, . . . we should be loathe to second guess their efforts . . . .”). For the reasons discussed below, the Court should deny Plaintiff’s motion for summary judgment and grant Federal Defendants’ cross-motion for summary judgment. STATUTORY BACKGROUND I. The National Environmental Policy Act. NEPA establishes the procedures by which federal agencies must consider the environmental impacts of their actions, but does not dictate the substantive results. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558 (1978). Regulations promulgated by the Council on Environmental Quality, 40 C.F.R. §§ 1500-1508, provide guidance for implementation of NEPA, and are entitled to substantial deference. Robertson, 490 U.S. at 355. Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 12 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 3 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Under NEPA, federal agencies must prepare an EIS for “major Federal actions significantly affecting the quality of the human environment . . . .” 42 U.S.C. § 4332(2)(C). In order to determine whether an action requires an EIS, the agency may prepare an Environmental Assessment (“EA”). 40 C.F.R. § 1501.4(b). An EA is a concise public document that briefly describes the proposal, examines alternatives, considers environmental impacts, and provides a list of individuals and agencies consulted. 40 C.F.R. § 1508.9. “If the agency concludes there is no significant effect associated with the proposed project, it may issue a FONSI in lieu of preparing an EIS.” Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1009 (9th Cir. 2006) (citing 40 C.F.R. § 1508.9(a)(1)). II. The National Forest Management Act. NFMA and its implementing regulations provide for forest planning and management at two levels: the forest level and the individual project level. See generally 16 U.S.C. § 1604; Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 728-30 (1998). At the forest level, the Forest Service develops a Forest Plan, which is a broad, long-term planning document for an entire National Forest. Forest Plans establish planning goals and objectives for units of the National Forest System for management of forest resources, ensuring consideration of both economic and environmental factors. 16 U.S.C. § 1604(g)(1)-(3). “These plans operate like zoning ordinances, defining broadly the uses allowed in various forest regions, setting goals and limits on various uses . . . but do not directly compel specific actions . . . .” Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 966 (9th Cir. 2003). At the project level, site-specific projects are to be consistent with the governing Forest Plan. See Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 757 (9th Cir. 1996); see generally 16 U.S.C. § 1604(i). Once the Forest Plan is approved, site-specific actions must be consistent with the Forest Plan, 16 U.S.C. § 1604(i), and the Forest Service’s interpretation of its own Forest Plan is entitled to substantial deference. Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097, 99 (9th Cir. 2003). III. The Healthy Forest Restoration Act. Congress enacted the HFRA in 2003 to “reduce wildfire risk to communities, municipal water supplies, and other at-risk Federal land through a collaborative process of planning, Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 13 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 4 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 prioritizing, and implementing hazardous fuel reduction projects[.]” 16 U.S.C. § 6501(1); Decker v. U.S. Forest Serv., 780 F. Supp. 2d 1170, 1172 (D. Colo. 2011). Under the HFRA, authorized hazardous fuel reduction projects on land with threatened and endangered species habitat shall be implemented as soon as practicable where “wildfire is identified as a threat to” a threatened species or its habitat and the project will “provide enhanced protection from catastrophic wildfire” so long as the project complies with “applicable guidelines specified in any management or recovery plan . . . .” 16 U.S.C. § 6512(a)(5). For the most part, “[i]n satisfying its HFRA obligations, the Forest Service must also comply with [NEPA] . . . .” WildWest Inst. v. Bull, 547 F.3d 1162, 1165 (9th Cir. 2008); see 16 U.S.C. § 6514(a)(1). However, Congress, through the HFRA, specifically tailored and narrowed the Forest Service’s NEPA obligations by establishing an expedited process that limits the notice, comment, and appeal procedures available to the public. See Decker, 780 F. Supp. 2d at 1172 (“Under HFRA, only an abbreviated objection process is necessary.”) (citing 36 C.F.R. § 218.1). “Moreover, where a plaintiff challenges an authorized hazardous fuel reduction project, HFRA further restricts the Court from considering any ‘issue’ that was not raised in the administrative review process.” Decker, 780 F. Supp. 2d at 1175 (citing 16 U.S.C. § 6515(c)(2)). In addition to the expedited NEPA notice and comment procedures, HFRA limits the number of alternatives that the agency must study in the NEPA document. 16 U.S.C. § 6514(c). The agency must analyze the proposed action alternative and a no action alternative, but is only required to study an additional action alternative if it is proposed during scoping or the public collaboration process and it meets the purpose and need of the project. Id. § 6514(c)(1). IV. The Endangered Species Act. The ESA was enacted “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” 16 U.S.C. § 1531(b). For species listed as threatened or endangered, the Secretary of the Interior will also designate critical habitat. 16 U.S.C. § 1533(a)(3)(A). Under ESA § 7(a)(2), each federal agency must ensure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 14 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 5 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 modification of the species’ designated critical habitat. 16 U.S.C. § 1536(a)(2). Each agency is required to “use the best scientific and commercial data available.” Id. The action agency may prepare a Biological Assessment (“BA”) to evaluate the potential effects of its proposed action. 50 C.F.R. § 402.12(a). If the agency’s action “may affect” an endangered or threatened species or its habitat, the ESA requires the agency to consult with FWS, either informally or formally. 50 C.F.R. §§ 402.14, 402.13. Informal consultation occurs when both action agencies agree that the action is not likely to adversely affect listed species or critical habitat and FWS provides written concurrence with this assessment. See 50 C.F.R. §§ 402.13, 402.12(k), 402.14(b)(1). However, if FWS does not agree with the “not likely to adversely affect” determination, the agencies undertake a process known as “formal consultation.” 50 C.F.R. § 402.14. Through the formal consultation process, FWS issues a Biological Opinion (“BiOp”) detailing how the proposed action will affect the listed species. 16 U.S.C. § 1536(b)(3)(A). If the proposed action will result in the taking of some species incidental to that action, the BiOp must include an incidental take statement (“ITS”) specifying the amount or extent of take expected to occur as a result of the proposed action, reasonable and prudent measures to minimize the impact of the take, and mandatory terms and conditions to implement the reasonable and prudent measures. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). The ITS provides an exemption from the take prohibition in ESA § 9; take in compliance with the terms and conditions of the ITS is not unlawful. 16 U.S.C. § 1536(o)(2). After formal consultation is complete, an agency may be required to reinitiate consultation if one of four conditions is met. 50 C.F.R. § 402.16. FACTUAL BACKGROUND I. The Smokey Project. The Smokey Project proposes fuel treatment activities in the Grindstone watershed in order to reduce the risk of wildfire damage to a portion of the Buttermilk Late Successional Reserve (“LSR”) and to move the treated areas toward the goals outlined in the Mendocino National Forest Land and Resource Management Plan (“Forest Plan”). FS-10, 21, 23-24. Specifically, the Project was designed to contribute to achieving the following Forest Plan goals: (1) maintain or improve the diversity and quality of habitat needed to support viable populations Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 15 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 6 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of all native and desired non-native wildlife and fish species, (2) maintain a cost effective detection, prevention, suppression, and fuels management program, and (3) provide a sustained yield of timber and other wood products to help support local economies and to contribute to meeting local, regional, and national needs. FS-11. The Project implements a fuels treatment strategy using strategically placed land area treatments (“SPLATs”) designed to reduce both the intensity and severity of wildfires. FS-10. SPLATs will be arranged in a pattern designed to slow, alter direction, or help stop fires across the landscape as well as protect important habitat features. FS-183. The proposed activities include 5,004 acres of fuel reduction/wildlife enhancement treatments, 933 acres of commercial thinning, and 400 acres of plantation thinning. FS-10, 86, 89, 194, 196, 224, 19104. The Project incorporates design features intended to reduce impacts to wildlife, including the NSO. For example, all existing snags, and large woody debris—habitat features preferred by NSOs—are retained unless they pose a threat to human safety or could result in high fuel levels. FS-19292. Each year, the Project will not treat more than 35% of suitable owl habitat within a 0.5 mile radius of an owl activity center2 (“AC”) or more than 25% of suitable habitat within the 1.3 mile home range. Id. Moreover, even when habitat is treated, it will remain functional post- treatment. FS-19306-08; id. at 19308 (“No suitable [NSO] habitat will be downgraded or removed”). The proposed action will involve thinning trees in the Project area, but the largest trees in the stand will be retained, unless the canopy closure can be maintained without them. See FS-136, 262, 492-93, 496. Field biologists from both Services visited the treatment areas to review the proposed units. FS-184, 226-28. To protect owls against noise disturbance during their breeding and nesting season, a limited operating period (“LOP”) will be enforced between “February 1 and September 15 in the units containing suitable nesting/roosting or foraging habitat proposed within 0.25 mile of known and/or historic activity centers . . . .” FS-18792. LOPs may only be waived for an area if there is 2 “Activity centers are a location or point representing ‘the best of’ detections such as nest stands, stands used by roosting pairs or territorial singles, or concentrated nighttime detections. Activity centers are within the core use area and are represented by this central location.” FWS-17591. Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 16 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 7 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a survey from the current year using the approved protocol that demonstrates the absence of owl activity. Id. At the time it issued the 2014 BiOp, FWS had two years of current protocol survey data, so the LOPs were adjusted based on the results of those surveys. See FS-19290-91 (2015 BiOp, explaining this difference from 2012). An LOP can only be lifted based on owl surveys “within the same year as the project,” and only with the concurrence of FWS. Id. At 19291. II. The NEPA Process. In October 2009, the Forest Service listed the Project in the Schedule of Proposed Actions, issued scoping letters on December 7, 2009, and issued a draft EA on July 14, 2010. FS- 12, 3596, 3643, 3660-81, 1983-2058. As required by HFRA, 16 U.S.C. § 6515(c), and 36 C.F.R. Part 218, Subpart A, the Forest Service provided an objection period on the draft EA. FS-1645, 1857. Plaintiff submitted its objection, FS-1557-632, 1639, raising a myriad of issues that the Forest Service worked to resolve. FS-1538-51, 1554. However, the Forest Service delayed issuing a DN/FONSI pending FWS’s finalization of the BiOp. FS-12, 22. In 2011, field examinations revealed root rot infection in the red and white fir trees in the stands proposed for commercial thinning. FS-22, 1510. The Forest Service determined that it needed to revise the analysis to determine whether to treat the stumps with borax after harvest in order to minimize the spread of the root disease. Id. The Forest Service conducted additional scoping in February 2012, see FS-1508-34, 3580-81, to seek public comment on changes to the Project including the proposed borax treatment as well as the revised determination for the NSO to “may affect and is likely to adversely affect” the owl. FS-22, 1510-11. Plaintiff submitted its comment to the additional scoping for the Project. FS-3545-61. On June 19, 2012, the Forest Service issued a second draft EA and initiated a second objection period for the Project. FS-1345-507. Plaintiff submitted a second objection to the Project, FS-1291-338, 780-899, 726-63, and the Forest Service considered and responded to Plaintiff’s objection. FS-768-70, 714. On August 20, 2012, the Forest Service issued the final EA and DN/FONSI for the Smokey Project. FS-10-18, 19-178. Finally, on November 30, 2015, the Forest Service issued a Supplemental Information Report (“SIR”) that evaluated the 2012 NSO Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 17 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 8 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 critical habitat rule and two new NSO activity centers. FS-1-9. Based on its analysis, the Forest Service concluded that no supplemental NEPA analysis was required. Id. III. The ESA Consultation. The Project has been thoroughly evaluated in multiple rounds of rigorous ESA consultation between the Forest Service and FWS. Beginning in 2010, the Services engaged in formal consultation and ultimately concluded that the Project will not adversely modify or destroy the owl’s critical habitat, nor is it likely to jeopardize the owl itself.3 See generally, FS- 18872, 18680-855; 182-278. In 2012, FWS revised the overall critical habitat designation for the owl to 9.5 million acres, which increased the amount of designated critical habitat in the Project by 704 acres. 77 Fed. Reg. 71876 (Dec. 4, 2012); FS-18942. This new rule triggered a re- initiation of formal of consultation, and the Forest Service updated its BA with the new critical habitat information. See FS-19091-92; see generally id. 18917-19175. FWS’s new 2014 BiOp superseded the 2012 BiOp. FS-18917. Under the ESA, project impacts to a species are evaluated at the broader recovery unit and species levels, so FWS evaluated impacts first in the Action Area and then in the California Klamath physiogeographic province (the relevant recovery unit). FWS evaluated all anticipated effects to the owl and its habitat in the Action Area and concluded that the Project will cause short-term adverse effects to the owls in two activity centers. FS-18993. However, FWS found that the Project will only affect less than 1% of the suitable habitat in the California Klamath province. FWS also noted that the Project is expected to have long-term benefits to the owls at all five of the home ranges in the Action Area by making the habitat more resilient to fire, among 3 Plaintiff mischaracterizes discussions between the Services’ staff regarding the Project during the consultation process stating that there was “considerable controversy.” See Pl.’s Br. 3-4. However, the cited emails merely demonstrate the rigorous consideration of the Project by both agencies. Furthermore, contrary to Plaintiff’s insinuations, the Forest Service re-initiated consultation with FWS because “an additional northern spotted owl activity center was discovered in the project area.” FS-19346. The Forest Service was merely complying with the monitoring requirements for the Project set forth by FWS in its 2012 BiOp. FS-18792 (requiring the Forest Service to report, among other things, the “progress/status of the proposed project” and “survey results”); see also FS-18998, 19325. Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 18 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 9 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 other things. Id. Therefore, FWS concluded that the Project is not likely to jeopardize the continued existence of the owl. FS-18996. FWS also evaluated impacts to critical habitat and found short-term adverse effects to foraging and dispersal habitat by affecting prey abundance and distribution, as well as decreased cover for owls. FS-18994. It also found that the Project will improve critical habitat in the long term by increasing fire resiliency and improving the function of the critical habitat in the area. See id. Under the ESA, impacts to critical habitat are evaluated at both the subunit level and the level of the entire designation. At the subunit level, given the short-term impacts, the fact that only 10% of foraging or dispersal habitat would be affected in the subunit and only 3.5% of nesting/roosting habitat would be affected, FWS concluded that the Project will not adversely modify critical habitat. FS-18994-96. It also found that the Project will have a long-term beneficial impact on critical habitat by improving habitat resiliency. Id. FWS issued an ITS with the BiOp for harm and harassment of up to two pairs of northern spotted owls and two eggs or young. FS-18996-97. FWS also explained that the Project is consistent with the goals of the 2011 Recovery Plan for conserving habitat and addressing the threat from barred owls because the Project reduces fire risk and promotes habitat development. FS-18983-84; id. at 18992 (recovery plan “recommends actively managing for fuels reduction due to the high amount of habitat lost to wildfire”). Although the Project may cause short-term adverse effects to spotted owls, FWS concluded that these effects “are not expected to preclude recovery of the species in the recovery unit or rangewide,” and the Project will maintain all owl habitat in the area. FS-18984. Moreover, the Project is anticipated to provide a long-term benefit by increasing the resiliency of the habitat. Id. After the 2014 BiOp was finalized, based on a review of the data in mid-December 2014, the Forest Service determined that it had inadvertently overlooked mislabeled owl detections in the 2013 survey results that showed owls relocating to two new Activity Centers (“AC”), 3062 and 3063. FWS-2683; FS-19387-88, 19283. An activity center is a point used to help approximate the area within which an owl that is defending a territory obtains resources. FS- 18954. As part of the Services’ continued commitment to owl protection, the Level 1 Team Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 19 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 10 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reconvened to evaluate this information. Biologists from the Services discussed the 2013 and 2014 owl survey results and determined that, “to be on the conservative side,” two new activity centers should be designated based on survey data that shows that owl pairs have been detected outside of existing activity centers. FWS-2872. The new activity centers were designated, but the owl’s historic centers were retained, so habitat surrounding both the historic activity centers and the new areas are protected. Id. After the Forest Service revised its BA to address impacts to these two new activity centers, FWS issued a new 2015 BiOp. FS-19347-80; 19281-343. The 2015 BiOp incorporated the 2014 BiOp by reference and analyzed the Project’s impacts on the new owl activity centers. FS-19281. The 2015 BiOp concluded that there were likely to be short- term adverse effects to owls in the two newly designated activity centers. FWS concluded that given the short-term impacts combined with long-term benefits to the owl, the Project is not likely to jeopardize the continued existence of the owl or adversely modify its critical habitat. FS-19321-23. FWS revised its ITS and concluded that the Project could harm or harass up to three pairs of owls and two young. Id. at 19324-25. The owls in the new AC 3062 were determined to be the same pair found previously at AC 3009, so although the Project may have adverse impacts in four activity centers, only three pairs may be affected. Id. at 19322. FWS again concluded that the Project is consistent overall with the 2011 Recovery Plan. FS-19319-20. The 2011 Recovery Plan identified competition from barred owls and past and current habitat loss as the main threats to the spotted owl. FS-4308; cf. Pl.’s Br. 2 (misstating this as habitat “modification”). The Project will not remove or downgrade any habitat. FS-19320. The 2011 Recovery Plan emphasizes the importance of “conservation” of occupied and historically occupied owl sites, which includes protecting, enhancing, and developing habitat, through vegetation management and silvicultural treatments. FS-4308-11. The 2011 Recovery Plan acknowledges that there are many scientific uncertainties regarding owl recovery. For example, “there are still many unknowns regarding how much fire benefits or adversely affects spotted owl habitat.” FS-4297. After reviewing all the available literature, the 2011 Recovery Plan acknowledges the benefits of active forest management, including actions to reduce fire risk: Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 20 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 11 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 We support projects whose intent is to provide long-term benefits to forest resiliency and restore natural forest dynamic process, when this management is implemented in a landscape context and with carefully applied prescriptions to promote long-term forest health. FS-4311-12 (explaining that “fire risk reduction” is an approved active management project); see also FS-4301. FWS explained that the Project is inconsistent with aspects of Recovery Action 10 because of short-term negative impacts to high value owl habitat in certain areas, although no habitat will be lost (except a very small opening of 0.19 acres for a temporary road). FS-19308, 19320. FWS then considered the Project’s consistency with the 2011 Recovery Plan as a whole and determined that the Project meets many of the Recovery Plan objectives and explained that those acknowledged short-term effects are not expected to preclude recovery of the species. FS- 19321; see also FS-AR 4280 (Recovery Plan acknowledging that there are tradeoffs between management actions that may be beneficial in the long term but may cause short-term impacts to spotted owls); see also id. at FS-AR 4253, 4264, 4265, 4279, 4301. STANDARD OF REVIEW Because NEPA and NFMA do not provide a private right of action, and the ESA does not provide its own standard of review, Plaintiff’s claims are reviewed under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-06; San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014), cert. denied, 135 S. Ct. 948 (2015). Under the APA, an agency’s decision may be overturned only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. As long as the administrative record supports the agency’s factual determinations, they should be upheld, even if the record could support alternative findings. Arkansas v. Oklahoma, 503 U.S. 91, 112-13 (1992); Vt. Yankee, 435 U.S. at 555; San Luis & Delta-Mendota Water Auth., 747 F.3d at 601. When examining agency scientific findings made within an area of an agency’s technical expertise, the court must generally be at its most deferential. Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 376-77 (1989); Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103 (1983). “Moreover, where a plaintiff challenges an authorized hazardous fuel reduction project, HFRA Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 21 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 12 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 further restricts the Court from considering any ‘issue’ that was not raised in the administrative review process.” Decker, 780 F. Supp. 2d at 1175 (citing 16 U.S.C. § 6515(c)(2)). ARGUMENT I. The Project Comports with NEPA. Plaintiff asserts that the “EA and DN/FONSI for the Project are arbitrary and capricious” because the Forest Service failed to insure the scientific integrity of the NEPA analysis and failed to consider a reasonable range of alternatives. Pl.’s Br. 23-24. Plaintiff also raises, but fails to advance, an argument that the Forest Service failed to take a “hard look” at the Project’s impacts in the EA. Id. at 24. Additionally, Plaintiff argues that the Forest Service should have supplemented its NEPA analysis and prepared an EIS. Id. at 23-24. As discussed below, Federal Defendants are entitled to summary judgment. A. The Forest Service Insured the Scientific Integrity of the Project’s NEPA Analysis. Plaintiff alleges that the Forest Service failed to insure the scientific integrity of the NEPA analysis. Pl.’s Br. 9-11. Plaintiff, however, waived this argument by failing to raise it in its operative complaints. See Second Am. Compl. ¶¶ 144-182 (ECF No. 65) (“Compl.”); Suppl. Compl. ¶ 11, ECF No. 102; Wasco Prod., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (“[S]ummary judgment is not a procedural second chance to flesh out inadequate pleadings.”) (quotation marks and citation omitted). Even if the Court considers this claim, it wholly fails. While “NEPA regulations require that an agency ensure the ‘scientific integrity’ of the discussions and analyses[,]’” League of Wilderness Defs.-Blue Mountains Biodiversity Project v. U.S. Forest Serv., 689 F.3d 1060, 1073 (9th Cir. 2012) (quoting 40 C.F.R. § 1502.24), each of Plaintiff’s seven complaints lack merit and they amount to no more than improper flyspecking of the NEPA analysis. See Half Moon Bay Fishermans’ Mktg. Ass'n v. Carlucci, 857 F.2d 505, 508 (9th Cir. 1988) (“The reviewing court may not ‘flyspeck’ an EIS . . . .”) (citation omitted). First, Plaintiff argues that the Forest Service incorrectly stated in the BA that “protection of the Buttermilk LSR from high intensity fire ‘was identified as a priority’ in the 2000 LSR Assessment.” Pl.’s Br. 10 (citing FS-211). This snippet of the BA was taken out of context. Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 22 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 13 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Indeed, the BA acknowledges that “[t]he LSR Assessment rated treatment within [the Buttermilk LSR] as a lower priority than other LSRs, however, it also states that ‘the results of this analysis should not be used to say that there will never be a need to treat fuels in the northern LSRs.’” FS- 211 (quoting FS-5335). The LSR Assessment further explains that “there may be specific areas[,] which are so important to maintain in late successional habitat that the loss of those areas would prevent attainment of desired conditions (notably well connected habitat).” FS-5335. And the Forest Service notes that the Buttermilk LSR was “identified as the only functioning LSR within the Forest” and explains the importance of maintaining functional habitat in the Buttermilk LSR because it is an important piece of the “spotted owl network and recovery.” FS- 211. At most this argument amounts to a quibble over the precision of one sentence in the BA, but fails to demonstrate that the analysis “misrepresent[e]d the scientific literature[.]” See League of Wilderness Defs.-Blue Mountains Biodiversity Project, 689 F.3d at 1073. Second, Plaintiff argues that the EA contains “varying statistics regarding the number of acres to be treated in the Buttermilk LSR.” Pl.’s Br. 10. Plaintiff argues that these are varying numbers for the same metric—“acres to be treated in the Buttermilk LSR.” Pl.’s Br. 10. They are not. For example, the 1,174-acre figure represents the acres specifically designed for the “[p]rotection of the Buttermilk LSR from [w]ildfire [d]amage.” See FS-24. The 3,389-acre figure is the number of acres within the Buttermilk LSR inside SPLAT units. FS-224. Additionally, 1,373 acres will be treated in the Buttermilk LSR, but outside SPLAT units. Id. The total treatment in the Buttermilk LSR is 4,761 acres, which is not substantially different than the 5,120-acre figure Plaintiff calculated itself from the statement in the EA that “[a]pproximately 80% of the Smokey Project is within the Buttermilk LSR.” FS-21. Third, Plaintiff complains that the EA omits discussion of the “heavy maintenance activities on up to 80 miles of existing roads for hauling activities.” Pl.’s Br. 10. Indeed, this discussion is not contained in the body of the EA, but is permissibly included in Supplemental Appendix Z, see 40 C.F.R. § 1502.18, and the underlying technical reports. See e.g., FS-111, 128, 163, 619 (Hydrology); 654 (Soils); see also 40 C.F.R. § 1502.21. Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 23 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 14 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fourth, Plaintiff claims that population trend data for the owl “was both stale and inaccurate.” Pl.’s Br. 11. But Plaintiff cites to an annual report for the Willow Creek and Regional study areas that do not equate to the Smokey Project area. See Pl.’s Br. 10, 1 (citing FWS-18383). In fact, the cited report specifically cautions against extrapolating the results to other areas and the Forest Service correctly did not do so. FWS-18461. Plaintiff’s fifth through sixth points fare no better. Plaintiff contends that the NEPA analysis (1) failed to address the presence of barred owls in the Project area; (2) failed to discuss the 2011 Recovery Plan; and (3) failed to discuss the scientific uncertainty regarding the risk of fire on owls. Pl.’s Br. 11. That is incorrect. The Forest Service addressed barred owls throughout the 2011 BA, see FS-216-17, 222, 250, 265; the 2011 Recovery Plan is discussed throughout Appendix Z of the EA, see e.g., FS-119-20, 127-30, 139, 143-44; and the uncertainty regarding fire is similarly addressed in Appendix Z. FS-144-45. There is no merit to Plaintiff’s claim that the Forest Service failed to insure the scientific integrity of the analysis and Plaintiff has not demonstrated a violation of NEPA. B. The Project’s Purpose and Need Statement is Sufficiently Broad and the Forest Service Evaluated an Adequate Range of Alternatives. Plaintiff next complains that the Project’s purpose and need statement is unreasonably narrow and led the agency to develop an unreasonable range of alternatives. Pl.’s Br. 11-13; Compl. ¶¶ 155-61. Plaintiff’s arguments are grounded on mischaracterizations of cherry-picked documents from the administrative record that do not support its claims. The Project’s stated purpose and need is “primarily to contribute to achieving wildlife habitat, fire management and secondarily to timber production goals established by the [] Forest Plan.” FS-23. Plaintiff argues that this purpose and need statement is “inconsistent with the best available scientific information concerning the relationship of NSOs and fire,” Pl.’s Br. 12, and for support cites to the 2011 Recovery Plan language counseling against “excluding disturbance events such as fires.” FS-4298. But Plaintiff misconstrues the 2011 Recovery Plan and a full reading clarifies the importance of supporting a natural fire regime, which is, indeed, among the purposes of the Project. See, e.g., FS-186 (“This would allow any future fire episode to act as a Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 24 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 15 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 natural process in the ecosystem rather than a large stand replacing event.”); FS-18772 (“The Smokey Project aims to reduce the unnatural heavy fuel accumulations and ladder fuels that have resulted from a century of fire suppression efforts in order to allow future fire to act as a natural process in the ecosystem as opposed to a large stand-replacing event.”). Contrary to Plaintiff’s claim the Project is not designed to exclude fire from the Project area, but rather to move the area closer to a natural fire regime. FS-11. Plaintiff has not established that the purpose and need statement is impermissibly narrow. See Nat. Res. Def. Council, Inc. v. U.S. Forest Serv., 634 F. Supp. 2d 1045, 1058 (E.D. Cal. 2007) (“The [Forest Service’s] definition of a project’s purpose and need is to be given considerable deference and evaluated under a standard of reasonableness.”) (citations omitted). With respect to the range of alternatives, the Forest Service considered in detail the proposed action and the no-action alternative. FS-36. In addition, the Forest Service briefly described and permissibly rejected three other alternatives from further study as either infeasible or inconsistent with the purpose and need of the project. FS-36-38; see 40 C.F.R. 1502.14(a) (explaining that an EIS should “briefly discuss the reasons” for eliminating alternatives from detailed study) (emphasis added); City of Carmel-By-The-Sea v. U.S. Dep't of Transp., 123 F.3d 1142, 1155 n.10 (9th Cir. 1997) (same). Curiously, Plaintiff fails to acknowledge that the Project was authorized under the HFRA, which allows the Forest Service to consider a limited number of action alternatives. 16 U.S.C. § 6514(c) (requiring agencies to analyze the proposed action, no-action, and “an additional action alternative, if the additional alternative--(i) is proposed during scoping . . . and (ii) meets the purpose and need of the project . . . .”). Under the HFRA, the Forest Service need only analyze the proposed action and a no-action alternative, and an additional alternative only if it is proposed during scoping and meets the purpose and need of the project. 16 U.S.C. § 6514(c)(1). Plaintiff cites to no authority supporting its assertion that it proposed an alternative contemplating an 18-20” diameter cap, see Pl.’s Br. 13, because Plaintiff, in fact, did not outright propose such an alternative to the Forest Service. See FS-1291-338; 1557-632; 3547. Plaintiff is, therefore, barred from raising this claim. 16 U.S.C. § 6515(c)(1) (“A person may bring a civil Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 25 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 16 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action challenging an authorized hazardous fuel reduction project . . . only if the person has challenged the . . . project by exhausting . . . the administrative review process . . . .”). But to the extent the Court considers this claim, it wholly fails. In Plaintiff’s 2010 objection, it expressed concerns about commercial thinning in the LSR and mentions an 18” diameter cap in passing in the context of arguing that other harvesting methodologies such as thinning from below might be viable. See FS-1580 (“[L]imited thinning from below prescriptions with quantitative diameter limits (e.g. no big trees over 18” DBH [diameter at breast height] will be cut in LSR”). Subsequently, in its 2012 comment during the second scoping period, Plaintiff requested a diameter cap, but requested no explicit size limitation. FS- 3547. In response to this comment, the Forest Service briefly considered an alternative that would not allow commercial thinning by imposing a 10” diameter cap, but determined that the alternative would be inconsistent with the Project’s purpose and need because “[n]ot reducing the overstory canopy would not result in the level of wildfire protection desired in the project area.” FS-38; see also Ex. 1 at 3 (explaining that “[t]rees less than 10 inches DBH” cannot be sold as commercial sawtimber) (attached); 40 C.F.R. § 1502.14(a) (explaining that an agency need only “briefly discuss the reasons” for eliminating alternatives from detailed study). The HFRA does not require more. Second, Plaintiff’s argument that FWS proposed a viable alternative that the Forest Service dismissed is a red herring. Pl.’s Br. 12-13. Plaintiff cites to FWS’s documentation of its rationale for concluding that the Project may affect and is likely to adversely affect NSO and mischaracterizes its contents by stating that FWS “specifically recommended an action alternative that would incorporate a 20” diameter cap.” FWS-1162-64. Not so. A full reading of the passage Plaintiff cited includes FWS’s comment that even 20-24” diameter trees “could be harvested without adverse effects” depending on the site specific stand characteristics. FWS- 1162. Indeed, there is no evidence supporting Plaintiff’s assertion that FWS submitted a viable alternative to the Forest Service that it failed to consider. Third, Plaintiff contends that the Forest Service failed to consider a “single action alternative that complies with” the 2011 Recovery Plan. Pl.’s Br. 13. This argument is meritless. Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 26 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 17 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NEPA does not require the Forest Service to consider an alternative based on the 2011 Recovery Plan (which is itself non-binding). In any event, FWS concluded that proposed alternative “is consistent with the ecosystem-scale restoration goal of the [2011] Recovery Plan” and “meets most of the recommendations,” FS-18772, but that it “is inconsistent with portions” of one of the thirty-two recovery actions. FS-19319-20; see also infra Sections I.C.2 and II; FS-4269-334 (Recovery Actions). While the Project is partially inconsistent with Recovery Action 10 to the extent that some core areas “are below the recommended amounts of nesting/roosting or foraging habitat (prior to project implementation),” all of the associated home ranges contain “more than the recommended amounts of suitable habitat.” FS-19320. And the Project is expected to result in “[l]ong-term benefits to habitat . . . through reduced risk of stand-replacing wildfire, improved stand health, and promoting future habitat development. Id. Plaintiff’s suggestion that the range of alternatives was flawed based on this narrow inconsistency with a non-binding guidance document wholly fails. The Forest Service studied a reasonable range of alternatives based on a permissible purpose and need for the Project; therefore, Plaintiff has not demonstrated a violation of NEPA. C. The Forest Service Correctly Determined that No EIS is Required. Plaintiff next argues that the Forest Service was required to prepare an EIS because the treatments in the Buttermilk LSR implicate “six of the ten ‘significance’ factors[.]” See Pl.’s Br. 14-16; Compl. ¶¶ 151-54. Even if each of the significance factors was present (they are not) it would not automatically require the Forest Service to prepare an EIS. As demonstrated below, the Project “will not have a significant effect” on the environment and no EIS is required. FS-12. 1. The Project’s Impacts on NSO are Not Significant and Do Not Warrant an EIS. Plaintiff myopically focuses on the early disagreement between the Services regarding the Project’s effects on NSO to suggest that the Forest Service should have prepared an EIS. See Pl.’s Br. 16-19. And Plaintiff further argues that “FWS determined that significant impacts will occur,” id. at 19, therefore, the Forest Service should have made the same conclusion. Not so. “Significant” is a term of art in NEPA and it is the Forest Service’s determination that the Project will not result in significant impacts and does not warrant an EIS that is relevant; that Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 27 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 18 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 determination is entitled to substantial deference. Balt. Gas & Elec. Co., 462 U.S. at 103 (deferring to an agency’s predictive judgments within the agency’s field of discretion and expertise). “Clearly, NEPA and the ESA involve different standards . . . .” Envtl. Prot. Info. Ctr., 451 F.3d at 1012. NEPA requires the preparation of an EIS only for “major Federal actions significantly4 affecting the quality of the human environment . . . .” 42 U.S.C. § 4332(2)(C) (emphasis added). While agencies must consider “[t]he degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the [ESA],” 40 C.F.R. § 1508.27(b)(9), it is not the presence of an intensity criterion that triggers the requirement to prepare an EIS, but the agency’s determination that the proposed action may have significant effects. See 42 U.S.C. § 4332(2)(C); Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 731 (9th Cir. 2001) (noting that any factor “may be sufficient to require preparation of an EIS in appropriate circumstances”) (emphasis added), abrogated on other grounds by Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010). Under [Plaintiff’s] theory, any information included in an EA and its supporting NEPA documents that admits impacts on wildlife species and their habitat would trigger the preparation of an EIS. Not only would such a standard deter candid disclosure of negative information, it does not follow that the presence of some negative effects necessarily rises to the level of demonstrating a significant effect on the environment. Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1240 (9th Cir. 2005). It is not a foregone conclusion that any determination by the Forest Service (or FWS) that a project “may effect, and is likely to adversely affect” a threatened or endangered species necessitates a finding of significance under the NEPA such that an EIS must be prepared. See Envtl. Prot. Info. Ctr., 451 F.3d at 1012 (“Although [the Plaintiff] seems to urge that any impact to a listed species requires an EIS, [the Forest Service] correctly argues that the regulation’s ‘intensity’ factor 4 The term “significantly” requires consideration of two broad factors: context and intensity. See 40 C.F.R. § 1508.27. Context “means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality,” Id. at § 1508.27(a), and “intensity” refers to the severity of the impact. Id. at § 1508.27(b). Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 28 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 19 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 focuses on the ‘degree to which an action may adversely affect’ a threatened species or critical habitat.” (citing Native Ecosystems Council, 428 F.3d at 1240)); see also Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1276 (10th Cir. 2004) (upholding EA/FONSI with a “likely to adversely affect” determination for bald eagle); Fund for Animals, Inc. v. Rice, 85 F.3d 535, 546-47 (11th Cir. 1996) (upholding EA/FONSI with a “likely to adversely affect” determination for Florida Panther and the Eastern Indigo Snake); Buckeye Forest Council v. U.S. Forest Serv., 337 F. Supp. 2d 1030, 1038 (S.D. Ohio 2004) (upholding an EA/FONSI with a “likely to adversely affect” determination for Indiana Bat). Here, the Forest Service made a reasoned conclusion that the Project will not have significant impacts (as defined in the NEPA) on NSO or its critical habitat “[b]ased on the small number of owls impacted, the short-term nature of the impacts, the undiminished functionality of all affected suitable habitat, and the continued ability of the area to support viability.” FS-15. The initial disagreement between the Services merely highlights the candid disclosure of impacts encouraged by the Ninth Circuit in Native Ecosystems Council, 428 F.3d at 1240, and the rigorous consideration of the Project made by the respective agencies. FS-22. Furthermore, as the agency had in Environmental Protection Information Center, 451 F.3d at 1012, the Forest Service considered, but did not wholly rely upon the “no jeopardy” determination made by FWS. FS-15. Impacts to NSO was simply one issue within the context of the Project that the Forest Service considered in making its determination that an EIS was not required. Thus, in light of the rigorous analysis and thorough review of the Project, the Forest Service’s determination that no EIS is required should be upheld. 2. The Project is Consistent with the Forest Plan and Does Not Violate NFMA. Plaintiff contends that the Project violates NFMA and therefore, requires an EIS. Pl.’s Br. 25, 19-20 (citing 40 C.F.R. § 1508.27(b)(10) (“Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.”)); Compl. ¶¶ 177-82. In support of its claim, Plaintiff argues that the Project is inconsistent with the Forest Plan’s forest-wide standard and guideline that “[m]anagement activities will comply with species recovery plans (threatened and endangered species) and habitat management plans, as Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 29 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 20 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 they apply to the Mendocino National Forest.” FS-5811. While the Project is partially inconsistent with Recovery Action 10, but consistent with all the other Recovery Actions, see supra Section I.B., that does not demonstrate that the Project is inconsistent with the 2011 Recovery Plan or that the Forest Service violated NFMA, or in turn NEPA. Although Plaintiff argues that the Forest Plan requires the Forest Service to strictly adhere to the 2011 Recovery Plan, this rigid interpretation is not supported. The critical inquiry for determining whether strict “compliance” with the 2011 Recovery Plan is mandated by the Forest Plan turns on the language of the Recovery Plan, not language of the Forest Plan. See Ecology Ctr. v. Castaneda, 574 F.3d 652, 660-61 (9th Cir. 2009) (explaining that the suggestive language of the Old Growth Guidelines did not—by virtue of being incorporated into the Forest Plan—“transform [the] otherwise suggestive set of guidelines into binding agency regulations.’” (quoting Terbush v. United States, 516 F.3d 1125, 1139 n.7 (9th Cir. 2008))). “If the guideline language underlying the plaintiff’s claim is merely advisory or aspirational,” the guidelines are not mandatory, and failure to meet them is not a violation of NFMA. Ecology Ctr. at 661. Here, the 2011 Recovery Plan is “not [a] regulatory document; rather [it is] created by [FWS] as guidance to bring about recovery and establish criteria to be used in evaluating when recovery has been achieved.” FS-4247-48. The document specifically acknowledges that “[r]ecovering a species is a dynamic process.” Id. at 4248. “Given the adaptive nature of this iterative process, recovery may be achieved without fully following the guidance provided in [the 2011] Recovery Plan.” Id. The 2011 Recovery Plan describes the recovery actions as “recommended,” FS-4248, rather than mandatory, and encourages “flexibility.” See FS-4260, 4265, 4280, 4285, 4287, 4311-12. The mere fact that the Project does not fully satisfy a portion of one recovery action out of thirty-two recovery actions in the plan, does not render the Project inconsistent with the 2011 Recovery Plan overall. FWS found that the Project is consistent with the plan because it “intends to protect and enhance late successional forest and habitat by treating hazardous fuels and high stand densities, restoring the natural ecosystem, and thereby reducing the risk of large stand Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 30 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 21 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 replacing fires that threaten [NSO] habitat.” FS-18772. That is precisely what the Forest Plan calls for and Plaintiff failed to show that the Project violates NFMA, or NEPA. 3. The Project’s Cumulative Effects Analysis Complies with NEPA. Plaintiff’s allegation that the Forest Service failed to consider the cumulative impacts5 of the Project disregards the comprehensive analysis conducted by the agency and therefore fails. See Pl.’s Br. 20-22; Compl. ¶¶ 147-50. First, Plaintiff takes issue with the geographic scope of the cumulative effects analysis suggesting that the Forest Service undertook its analysis at a “scale” that was “irrationally limited to the perimeter of the immediate Project area[.]” Pl.’s Br. 21-22. In fact, the Action Area for the Project includes “the proposed treatment units plus a 1.3 mile radius surrounding the unit boundaries” to account for “species that are wide ranging, such as the owl. FS-188. The cumulative effects analysis for the owl was evaluated for the Action Area. FS-47. And NEPA contains no requirement to study the proposed impacts of a Project at any particular scale. Indeed, the “extent and scope” of a given NEPA analysis are left to the discretion of the agency. Kleppe v. Sierra Club, 427 U.S. 390, 414 (1976); Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1071 (9th Cir. 2002) (“[U]nder NEPA we defer to an agency’s determination of the scope of its cumulative effects review.”). Plaintiff also alleges that the Forest Service failed to consider other projects in the Buttermilk LSR. That is incorrect. In the EA and BA, the Forest Service evaluated the Hardin Fuels Treatment and Brewers projects that occur in the Smokey Action Area and in the Buttermilk LSR. FS-47-48, 206-08. And Plaintiff does not articulate how this analysis is inadequate nor does Plaintiff list any projects that the Forest Service failed to analyze. Second, Plaintiff contends that the scope of the analysis was “unreasonably narrow” and limited to federal projects, excluding private land. Pl.’s Br. 22. Not so. “Both private land and Forest Service are accounted for in this analysis.” FS-45; 267 (discussing the cumulative effects on private land and noting that five parcels have had “light to moderate selective harvesting”). 5 “Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions . . . . Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” 40 C.F.R. § 1508.7. Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 31 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 22 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moreover, Plaintiff fails to identify any activities—on federal or private land—that the Forest Service should have included in its analysis, and did not. Third, the Forest Service conducted a thorough analysis of the Project’s cumulative effects. For example, for the Hardin Fuels Treatment, Snow Basin, and Brewers projects, the Forest Service explained the projects’ design features, potential impacts on NSO, and how those projects, along with the Smokey Project, would impact nesting/roosting, and foraging habitat in the Action Area. FS-47, 206-08. That analysis was certainly more detailed than the general and perfunctory analyses courts have rejected. See FS-45-50, 207-28, 265-67; see also Klamath- Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 997 (9th Cir. 2004) (“[T]he EAs at issue here contain general statements about the cumulative effects . . . . What is missing . . . , however, is any specific information about the cumulative effects.”). Plaintiff’s argument that the Forest Service’s cumulative effects analysis for the Project is flawed fails. In fact, the record is clear that the Forest Service carefully examined each resource at the proper scale and scope and included all reasonably foreseeable future actions in its analysis. NEPA does not require more. 4. The Project’s Effects are Not Highly Uncertain. Plaintiff contends that uncertainties in scientific understanding of the interaction between wildfire, forest management activities, and NSO require the Forest Service to prepare an EIS. Pl.’s Br. 22-23. While an agency must consider “[t]he degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks,” 40 C.F.R. § 1508.27(b)(5), “the regulations do not anticipate the need for an EIS anytime there is some uncertainty, but only if the effects of the project are ‘highly’ uncertain.” Envtl. Prot. Info. Ctr., 451 F.3d at 1011 (quoting Native Ecosystems Council, 428 F.3d at 1240). Plaintiff cites to FWS’s response to a comment on the draft 2011 Recovery Plan, FWS- 18366 (“The Service does not assume logging is more benign than fire and acknowledges risks associated with doing vegetation treatments in light of uncertainties.”). The comment does not speak to the Smokey Project specifically and merely notes that there is some scientific Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 32 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 23 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 uncertainty with respect to the effects of fire on NSO habitat, which the Forest Service addressed in the EA. FS-144-45. Plaintiff also cites an email of December 6, 2010 from FWS to the Forest Service requesting additional information, FS-18887 (noting that the Forest Service agreed to “determine whether the information [FWS] requested could be obtained). This email was early in the planning process (nearly two years before the DN/FONSI was signed) and demonstrates that the Forest Service committed to providing FWS the information it requested. Because “federal courts ordinarily are empowered to review only an agency’s final action,” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658–59 (2007), the Ninth Circuit has declined to place weight on such “preliminary” statements. Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163, 1174 (9th Cir. 2004). Neither of these documents establish that the effects of the Project are “highly” uncertain. Nor do they support Plaintiff’s argument that the Project’s effects are significant in the context of NEPA and warrant preparing an EIS. See Native Ecosystems Council, 428 F.3d at 1240 (“Simply because a challenger can cherry pick information and data out of the administrative record to support its position does not mean that a project is . . . highly uncertain.”). 5. The Project’s Effects are Not Highly Controversial. Plaintiff next claims that the Project “is associated with . . . controversial effects, thereby triggering the requirement for an EIS.” Pl.’s Br. 22-23. NEPA requires the Forest Service to evaluate “[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4). Plaintiff rests its argument in favor of an EIS on the claimed controversy between the Services with respect to the Project’s effects on NSO. Id. at 23. “A proposal is highly controversial when 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.’” Anderson v. Evans, 371 F.3d 475, 489 (9th Cir. 2004) (quoting Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998)). For this proposition, Plaintiff presents a single email string between the Services from February 2015 discussing the location of a new AC. Pl.’s Br. 23 (citing FWS-2873). This email Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 33 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 24 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is post-decisional and, by definition, was not before the Forest Service when it issued the DN/FONSI. The email should not weigh on whether the DN/FONSI was arbitrary and capricious. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985) (“[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” (citation omitted)). In any event, the discussions between the Services with respect to the “may affect, likely to adversely affect” determination were early in the process and any disagreement among the Services was resolved prior to the Forest Service issuing its EA and subject to public comment. See FS-22 (noting that the Forest Service conducted additional scoping on the revised determination). These discussions simply demonstrate that the consultation process worked as designed, thus, Plaintiff’s argument falls short of demonstrating that there is a controversy— substantial or not—regarding the “size, nature, or effect” of the Project. Anderson, 371 F.3d at 489. Plaintiff’s bald assertions of controversy among the Services, without more, does not create controversy requiring an EIS. 6. The Project’s Proximity in the Buttermilk LSR Does Not Require an EIS. Next, Plaintiff boldly asserts that “the location of the Project in the crucially important Buttermilk LSR undoubtedly triggers,” the “ecologically critical area[]” significance factor requiring an EIS. Pl.’s Br. 23 (citing 40 C.F.R. § 1508.27(b)(3) (“Unique characteristics of the geographic area such as . . . ecologically critical areas.”). But Plaintiff fails to articulate any cogent legal argument that the Project will have a significant effect on the LSR. See Klamath Siskiyou Wildlands Ctr. v. Grantham, 424 F. App’x 635, 638 (9th Cir. 2011) (“While Plaintiffs may have arguably established that the Riparian Reserves are ecologically critical areas, Plaintiffs failed to explain how the project would have a ‘significant effect’ on them.” (citing 40 C.F.R. § 1508.27(b)(3))); see also Coleman v. District of Columbia, 794 F.3d 49, 65 (D.C. Cir. 2015) (“It is not and should not be enough merely to mention a possible argument in the most skeletal way in one sentence on the fortieth page of a brief, and then leave the court . . . to do counsel’s work.” (internal quotation and alterations omitted). Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 34 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 25 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Indeed, Plaintiff must demonstrate more than a mere proximity of the Project to the Buttermilk LSR to demonstrate that an EIS is required. See Klamath Siskiyou Wildlands Ctr., 424 F. App’x at 638 (“Proximity of a project to a sensitive area does not per se warrant an EIS.” (citing Presidio Golf Club v. Nat'l Park Serv., 155 F.3d 1153, 1162 (9th Cir. 1998))). The pertinent inquiry is whether the impact to the Buttermilk LSR is significant within the meaning of NEPA warranting an EIS. Here, the Forest Service concluded that the Project “will not have a significant effect on the quality of the human environment.” FS-12. The Project is designed to reduce the potential for stand replacing wildfire damage in the Buttermilk LSR, FS-11, 183, and to protect and enhance the late successional habitat that is important to the NSO. Id. at 183. Plaintiff has not shown that the Project’s proximity within the Buttermilk LSR constitutes a significant impact to the LSR warranting an EIS, thus, Plaintiff’s claim should be rejected. D. The Forest Service Correctly Concluded in its Supplemental Information Report that No Further NEPA Analysis is Required. Plaintiff first contends that the Forest Service’s SIR is arbitrary and capricious because it altered the Project’s LOPs for the owl. Pl.’s Br. 24; see also Compl. ¶¶ 162-66; Supp. Compl. ¶ 11. Not so. The DN/FONSI “incorporates the terms and conditions” of the 2012 BiOp and ITS, FS-11, which requires among other things “a limited operating period from February 1 to September 15 in the units containing suitable nesting/roosting or foraging habitat proposed within 0.25 mile of known and/or historic activity centers, based on survey data complying with currently accepted protocol for northern spotted owls.” FS-18792. “[T]he Forest Service has not changed, and does not intend to change, the [DN/FONSI]; which ‘incorporates the terms and conditions’” of the BiOp and ITS. FS-19367. The LOP outlined in the DN/FONSI has not changed and, thus, no supplemental analysis is required. Second, Plaintiff argues that the Forest Service’s SIR failed to take a “hard look” at newly designated critical habitat for the owl because the agency relied on “FWS’s determination that the Project will not ‘destroy or adversely modify’ critical habitat.” Pl.’s Br. 24. Contrary to Plaintiff’s argument, while the Forest Service noted FWS’s determination in its SIR, the Forest Service explicitly relied upon its analysis in the 2014 BA, FS-19090-175, to evaluate the changes Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 35 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 26 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 between the 2008 and 2012 critical habitat rule. FS-4-5. The 2014 BA thoroughly analyzed the effect of the critical habitat rule on the Project and concludes that “[e]ven though more acres of critical habitat will be treated under the 2012 rule, critical habitat will not be significantly impacted.” Id. at 5. The Forest Service’s conclusion that no supplemental NEPA analysis is warranted is sound and the SIR should be upheld. II. The Biological Opinion is Consistent with the ESA and Must Be Upheld. FWS consulted with the Forest Service three separate times, to evaluate impacts of the Project on the northern spotted owl. The Project contains several features that reduce impacts to northern spotted owls. Based on these considerations, FWS concluded that, while there may be some adverse effects to the spotted owl in the short term, the Project was not likely to jeopardize the owl or adversely modify or destroy its critical habitat. Under these circumstances, the Court must defer to FWS’s conclusions. For example, in Rock Creek Alliance v. U.S. Fish & Wildlife Serv., 663 F.3d 439 (9th Cir. 2011), the court upheld a “no adverse modification” conclusion for a project in bull trout habitat where, as here, the amount of critical habitat designated greatly exceeded the amount of habitat affected. Id. at 442-43; see also Trout Unlimited v. Lohn, 559 F.3d 946, 959 (9th Cir. 2009) (“Assessing a species’ likelihood of extinction involves a great deal of predictive judgment . . . are entitled to particularly deferential review.”). Plaintiff argues that the 2015 BiOp is arbitrary and capricious because FWS determined that the Project is inconsistent with one aspect of one of the recovery actions of the 2011 Recovery Plan. Pl.’s Br. 27. The ESA does not require that a BiOp satisfy all elements of a recovery plan, which is a non-binding document, created within the FWS’s discretion, that provides a plan for the conservation and survival of threatened and endangered species. 16 U.S.C. § 1533(f); FS-4247-48; supra Section I.C.2; United States v. McKittrick, 142 F.3d 1170, 1176 (9th Cir. 1998) (noting “adoption of recovery plans is discretionary.”); Cal. Native Plant Soc’y v. EPA, No. 06-03604-MJJ, 2007 WL 2021796, at *21 (N.D. Cal. July 10, 2007) (recovery plans do not have the force of law). To comply with the ESA, a BiOp must evaluate whether a project is likely to jeopardize the continued existence of a species, not whether it is consistent Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 36 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 27 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with the species’ recovery plan. Other courts have rejected arguments that conflate the jeopardy inquiry with recovery: The jeopardy analysis—which FWS makes rangewide, in Washington, Oregon, and northern California—is concerned with whether a given federal action at the species level would appreciably reduce the likelihood of recovery, not whether that federal action would itself implement or bring about recovery. The court rejects plaintiffs' invitation to blur the two separate and distinct concepts of jeopardy and recovery. Cascadia Wildlands v. Thrailkill, 49 F. Supp. 3d 774, 787 (D. Or. 2014), aff'd, 806 F.3d 1234, 1244 (9th Cir. 2015) (“The biological opinion properly focused on jeopardy rather than monitoring for perfect compliance with the recovery plans.”). FWS properly focused its BiOp on the applicable ESA standards. In addition, FWS determined that, because any adverse impacts are expected to be short-term, project implementation was not likely to preclude recovery either in the recovery unit or rangewide. FS-19320-21. Moreover, FWS found that the Project, which promotes future habitat development, would benefit the owl in the long term, consistent with the Recovery Plan. Id.; see also FS-4280 (Recovery Plan acknowledging that there are tradeoffs between management actions that may be beneficial in the long term but may cause short-term impacts to owls); see also id. at FS-4253, 4264, 4265, 4279, 4301. Second, Plaintiff suggests that AC 3063 was mis-designated and, therefore, the BiOp does not reflect the “institutionalized caution” required by the ESA. Pl.’s Br. 27-28. Plaintiff’s argument fails because BiOps are developed under the “best available science” standard. This requires the agencies to use the best available science as the foundation of their analyses. The “determination of what constitutes the ‘best scientific data available’ belongs to the agency’s ‘special expertise . . . When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.’” San Luis & Delta- Mendota Water Auth., 747 F.3d at 602 (quotation omitted). “The best available data requirement ‘merely prohibits [an agency] from disregarding available scientific evidence that is in some way better than the evidence [it] relies on.’” Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072, 1080 (9th Cir. 2006) (quotation omitted); see Conservation Cong. v. Finley, 774 F.3d 611, 620 (9th Cir. 2014). To prevail, plaintiff must specifically identify data omitted from the agencies’ Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 37 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 28 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 consideration. See Kern Cty. Farm Bureau, 450 F.3d at 1081. Here, Plaintiff speculates that the agencies used the wrong protocol to designate the activity center, but does not explain the proper protocol and ignores the Level 1 Team process used to develop the activity center and its associated home range, which was based on survey data and the available information on suitable habitat. FS-19299-305, 19279, 18954, 2769-72, 2873; FWS-2872, 3370. Third, Plaintiff argues that FWS should have analyzed the owl at the level of the Buttermilk LSR rather than throughout its range. Pl.’s Br. at 28. The ESA has no such requirement. It “require[s] only that [the agency] evaluate ‘the current status of the listed species or critical habitat,’ ‘the effects of the action,’ and the ‘cumulative effects on listed species or critical habitat.’” Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936, 948 (9th Cir. 2010) (quoting 50 C.F.R. § 402.14(g)(2)-(3)). FWS appropriately met these requirements in analyzing the direct, indirect, and cumulative effects on the northern spotted owl and its designated critical habitat. FS-19293-19319; FS-18932-82. It reasoned that, because the Project will not significantly affect the northern spotted owl population, it will not jeopardize the continued existence of the species. In addition, FWS found that the Project would not adversely modify or destroy the owl’s designated critical habitat. FS-19322-23; FS-18982, 18984-996. The ESA requires no separate consideration of impacts to the LSR. Fourth, Plaintiff erroneously claims that the operative 2014 and 2015 BiOps have a new LOP provision. They do not. See supra Section I.D. The LOP provision continues to provide that, unless there are surveys to protocol for that year that confirm that an activity center is unoccupied, LOPs are in effect. See FS-19290-91. In any event, it is not the BiOp that implements the limited operating periods, instead, they are part of the Project design as implemented by the Forest Service’s decision documents. Thus, had Plaintiff identified an actual change in the Project, which it has not, and had it properly stated an ESA claim on this basis, which it cannot, Plaintiff’s real dissatisfaction may be directed at the Forest Service’s biological assessment under the ESA or the decision documents, which are not FWS’s documents. Moreover, the contents of the biological assessment are at the discretion of the agency and depend on the nature of the action, but in any case, require only that the Forest Service Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 38 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 29 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reasonably evaluate whether any endangered or threatened species or critical habitat are likely to be adversely affected by the action, which the Forest Service did, relying on the actual LOPs in place. See Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048, 1056 (9th Cir. 2013); see also 50 C.F.R. § 402.12(f) (the contents of a biological assessment are at the discretion of the action agency). Plaintiff’s final argument against FWS fails. Finally, the Forest Service could, and did, reasonably rely on the BiOp. Plaintiff therefore fails to state an ESA claim against the Forest Service because, under the ESA, the Forest Service discharged its duties under the ESA by consulting with and reasonably relying on FWS’s resulting BiOp. See Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of Navy, 898 F.2d 1410, 1415 (9th Cir. 1990). Plaintiff does not identify new information that was not considered at the time of the BiOp. See Aluminum Co. of Am. v. Bonneville Power Admin., 175 F.3d 1156, 1161 (9th Cir. 1999) (“[W]e will not require that an action agency reinvent the wheel and conduct an independent jeopardy analysis when nothing more is offered than evidence and arguments already considered by the consulting agency.”). Instead, Plaintiff speculates that the Forest Service has been “less than forthright” with the FWS including based on purported mischaracterizations of owl habitat quality. The designation of the new ACs in 2015 was based on joint FWS and Forest Service conversations, so it is unclear how Plaintiff can claim that the Forest Service withheld information. See, e.g., FWS-2683. Moreover, Plaintiff also did not submit a 60-day notice alerting FWS or the Forest Service to these concerns which are based on an impermissible extra-record declaration. By instead presenting their concerns before waiting 60 days to bring suit, Plaintiff has failed to give proper notice or allow for a 60-day litigation- free window before bringing suit under the ESA. Id. For those additional reasons, Plaintiff’s claims should be rejected. See Sw. Ctr. for Biological Diversity, 143 F.3d at 521. III. Plaintiff is Not Entitled to Injunctive Relief. Plaintiff asks the Court to enjoin the Forest Service from implementing the Smokey Project. Pl.’s Br. 30; Compl. ¶ E. However, it is Plaintiff’s burden to prove that injunctive relief is warranted, see eBay Inc. v. MercExchange, 547 U.S. 388, 391 (2006), and Plaintiff has made Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 39 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 30 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 no attempt to carry its burden. Therefore, Plaintiff’s request for injunctive relief should be denied. “An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course.” Monsanto v. Geertson Seed Farms, 560 U.S. 139, 165 (2010); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). To obtain an injunction, a plaintiff must prove: “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay Inc., 547 U.S. 388, 391 (2006). The four-factor test applies with equal force when a plaintiff alleges an environmental injury or a violation of NEPA or the ESA. Monsanto, 560 U.S. 157. Plaintiff’s claim for injunctive relief should be denied because Plaintiff failed to carry its burden to demonstrate that the Project will cause Plaintiff irreparable harm. Second, enjoining the Project would harm the public’s interest in: (1) reducing the risk of catastrophic wildfire, (2) restoring habitat for the owl, and (3) contributing to a sustainable supply of timber. Third, even if implementing the Project would harm Plaintiff, the degree of such harm is minimal and the balance of equities tip sharply against the issuance of an injunction. If the Court concludes that the Services have failed to fully comply with NEPA, the ESA, or NFMA, the Court should remand the matter to the agencies to fix any errors, but allow the Project to proceed during remand. Should the Court find a violation and conclude that some form of injunctive relief is appropriate, Federal Defendants respectfully request the Court to give the parties a further opportunity to address the scope of relief. See Nat. Res. Def. Council v. Kempthorne, 506 F. Supp. 2d 322, 388 (E.D. Cal. 2007) (ordering supplemental briefing on the appropriate remedy and noting that “it is not prudent to impose a remedy without further input from the parties”). CONCLUSION For the foregoing reasons, the Court should deny Plaintiff’s Motion for Summary Judgment and grant Federal Defendants’ Cross-Motion for Summary Judgment. Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 40 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 31 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted this 9th day of September, 2016. JOHN C. CRUDEN Assistant Attorney General United States Department of Justice Environment & Natural Resources Division TYLER L. BURGESS, Cal. Bar No. 308701 Trial Attorney Natural Resources Section PO Box 7611 Washington, DC 20044-7611 Tel: (202) 616-4119 / Fax: (202) 305-0506 Email: tyler.burgess@usdoj.gov SETH M. BARSKY, Chief S. JAY GOVINDAN, Assistant Chief /s/ Andrea Gelatt ANDREA GELATT, Cal. Bar No. 262617 Trial Attorney Wildlife & Marine Resources Section PO Box 7611 Washington, DC 20044-7611 Tel: (202) 305-0210 / Fax: (202) 305-0275 Email: andrea.gelatt@usdoj.gov Attorneys for Federal Defendants Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 41 of 42 FED. DEFS.’ MOT. AND MEM. IN SUPP. OF CROSS-MOT. FOR SUMM. J. 32 Conservation Congress v. U.S. Forest Serv., No. 2:13-cv-01977-JAM-DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 9, 2016, I filed the foregoing document electronically through the CM/ECF system, which caused all parties or counsel of record to be served by electronic means, as more fully reflected on the Notice of Electronic Filing. /s/ Andrea Gelatt Andrea Gelatt U.S. Department of Justice Case 2:13-cv-01977-JAM-DB Document 106-1 Filed 09/09/16 Page 42 of 42 2409.18_50 Page 1 of 7 FOREST SERVICE HANDBOOK PACIFIC SOUTHWEST REGION (REGION 5) VALLEJO, CA FSH 2409.18 - TIMBER SALE PREPARATION HANDBOOK CHAPTER 50 - FINAL PACKAGE PREPARATION, REVIEW, APPRAISAL AND OFFERING - GATE 4 Supplement No.: 2409.18-2013-1 Effective Date: August 13, 2013 Duration: This supplement expires 5 years from the effective date unless superseded or removed earlier. Approved: RANDY MOORE Regional Forester Date Approved: 8/13/2013 Posting Instructions: Supplements are numbered consecutively by Handbook number and calendar year. Post by document name. Remove entire document and replace with this supplement. Retain this transmittal as the first page of this document. The last supplement to this handbook was 2409.18_50-2011-3, 11/21/2011. New Document: 2409.18_50 7 Pages Superseded Documents by issuance Number and Effective Date: 2409.18_50-2011-3 Issued 11/21/2011 7 Pages Digest: 50 - Reissued entire supplement after the WO issued an updated amendment to Chapter 50 of its handbook. Case 2:13-cv-01977-JAM-DB Document 106-2 Filed 09/09/16 Page 1 of 3 R5 SUPPLEMENT: 2409.18-2013-1 EFFECTIVE DATE: 8/13/2013 DURATION: This supplement expires 5 years from the effective date unless superseded or removed earlier. 2409.18_50 Page 2 of 7 FSH 2409.18 - TIMBER SALE PREPARATION HANDBOOK CHAPTER 50 - FINAL PACKAGE PREPARATION, REVIEW, APPRAISAL AND OFFERING - GATE 4 53 - TIMBER SALE CONTRACT 53.4 - Timber Sale Contract Form FS-2400-6 Use section 53.5 53.5 - Timber Sale Contract Form FS-2400-6T When offering a salvage sale on a 2400-6(T) contract, do not allow more than two operating seasons when making the termination date. One operating season for a 2400-6 salvage contract should be the norm. An appraiser should appraise for two sides when necessary to maximize product recovery. Allowing more than two operating seasons for a salvage sale will need Regional Office approval. This limit of two operating seasons is also to be applied to stewardship projects when salvage is a part of the contract. 53.51 - Division A(T) (2400-6(T)) Contract Utilization Standards, Minimum Specifications. The Utilization Table below shows the minimum tree and piece specifications for the products offered in Region 5. Use the standards as shown except as noted. Other specifications may be used under special circumstances, such as helicopter sales, with Regional Office approval. Use a minimum of one piece per tree for all products. For salvage sales sold in Scribner (MBF), use 20 board feet for the minimum piece net scale in C 2.2. For green tree measurement sales sold in Scribner (MBF), use 10 board feet for the minimum piece net scale in CT2.2. When setting up the products to be offered in a sale or stewardship project, do not use Nonsawtimber (Code 08) when selling biomass. If biomass is in your sale or project, use product Green Biomass (Code 20). The product Green Biomass can be used to cover material that is being burned in a cogeneration plant for energy and other material that is going into a bio- fiber product. These utilization standards and minimum specifications are also to be applied to Integrated Resource Timber Contracts (2400-13(T)) and Integrated Resource Service Contracts. (See exhibit 01) Case 2:13-cv-01977-JAM-DB Document 106-2 Filed 09/09/16 Page 2 of 3 R5 SUPPLEMENT: 2409.18-2013-1 EFFECTIVE DATE: 8/13/2013 DURATION: This supplement expires 5 years from the effective date unless superseded or removed earlier. 2409.18_50 Page 3 of 7 FSH 2409.18 - TIMBER SALE PREPARATION HANDBOOK CHAPTER 50 - FINAL PACKAGE PREPARATION, REVIEW, APPRAISAL AND OFFERING - GATE 4 53.51 - Exhibit 01 Utilization Table Minimum Tree and Piece Specifications Product Species UOM Tree DBH (Inch) Piece Length (Feet) Piece Small End Dia (Inch) Piece Merch Factor or % Net of Gross Notes Sawtimber (01) All CCF 10.0 10.0 6.0 12 2, 3, 5, 6 Sawtimber (01) All MBF 10.0 10.0 6.0 25% 3, 5, 6 Sawtimber (01) All Ton 10.0 10.0 6.0 12 2, 3, 5, 6 Non-Sawtimber (08) All Ton 3.0 6.0 NA 16 1, 4, 7 Non-Sawtimber (08) All CCF 3.0 6.0 NA 16 1, 4, 7 Green Biomass (20) All Ton 3.0 6.0 NA 16 1, 4 Green Biomass (20) All CCF 3.0 6.0 NA 16 1, 4 Utilization Table Notes 1. Trees less than 10 inches DBH can still be included material but they must not be sold as a sawlog product. Trees less than 10 inches DBH can be offered as product 20, green biomass if it applies or product 08, non-sawtimber if biomass does not apply to the sale or project, at rates less than sawlog, see R5 supplement to FSM 2430, 2431.31b - Minimum Rates. 2. A minimum tree DBH of 9.0 inches may be used if 75% of trees in this DBH class can produce a 16 foot log with a 6.0 inch small end diameter, inside bark 3. A larger DBH may be specified for timber species with high taper, such as incense- cedar, to insure that the average tree contains a minimum piece. 4. A larger minimum tree DBH for biomass and non-sawtimber may be used if necessary for economic considerations. 5. When offering a salvage sale, increase the minimum Piece Small End Diameter to 8 inches. 6. Forest Supervisors may specify larger tree and piece specifications for salvage sales when local conditions warrant the change and overall Forest Service objectives and interests are properly protected. 7. Do not use when the product being sold is biomass. If biomass is in your sale or project, use product Green Biomass (Code 20). The product Green Biomass can be used to cover material that is being burned in a cogeneration plant for energy and other material that is going into a bio-fiber product. Case 2:13-cv-01977-JAM-DB Document 106-2 Filed 09/09/16 Page 3 of 3